UNIVERSITY OF PETROLEUM & ENERGY STUDIES

SCHOOL OF LAW

B.B.A LL.B. (HONS.) [BATCH 1]

SEMESTER IV

ACADEMIC YEAR: 2017-2018 SESSION: JANUARY-MAY

SYNOPSIS ON:

WRITS AND RES JUDICATA

NAMES:
ANKITA BANERJEE R760216014

ANJANEE GOEL R760216013

IN THE SUPERVISION OF:

ANIL KUMAR
 SYNOPSIS
Background

In common law, a writ is a formal written order issued by a body with administrative or judicial
jurisdiction; in modern usage, this body is generally a court. Warrants (a document issued by a legal
or government official authorizing the police or another body to make an arrest, search
premises, or carry out some other action relating to the administration of justice.), prerogative
writs (A prerogative writ is a writ (official order) directing the behavior of another arm of government,
such as an agency, official, or other court. It was originally available only to the Crown under English
law, and reflected the discretionary prerogative and extraordinary power of the monarch.), and
subpoenas (a writ ordering a person to attend a court ) are common types of writ, but many forms
exist and have existed.

The Indian Constitution empowers the Supreme Court to issue writs for enforcement of any of the
fundamental rights conferred by Part III of Indian Constitution under Article 32. Thus the power to issue
writs is primarily a provision made to make available the Right to Constitutional Remedies to every
citizen. The Right to Constitutional Remedies, as we know, is a guarantor of all other fundamental rights
available to the people of India.

In addition to the above, the Constitution also provides for the Parliament to confer on the Supreme Court
power to issue writs, for purposes other than those mentioned above.

Similar to the powers of Supreme Court, the constitution of India, under article 226, empowers the High
Courts in India to issue writs for the enforcement of any of the rights conferred by Part III and for any
other purpose.

Article 32 is only for inforcement of fundamental rights and article 226 is for enforcement of any
rights. Article 32 is for supreme court and article 226 is for High court.

Res Judicata is a phrase which has been evolved from a Latin maxim, which stand for ‘the thing has been
judged’, meaning there by that the issue before the court has already been decided by another court,
between the same parties. Therefore, the court will dismiss the case before it as being useless. Res
Judicata as a concept is applicable both in case of Civil as well as Criminal legal system.
Once a final judgment has been announced in a lawsuit, the subsequent judges who are confronted with a
suit that is identical to or substantially the same as the earlier one, they would apply the Res Judicata
doctrine ‘to preserve the effect of the first judgment’. This is to prevent injustice to the parties of a case
supposedly finished, but perhaps mostly to avoid unnecessary waste of resources and time of the Judicial
System and therefore, the same case cannot be taken up again either in the same or in the different Court
of India. This is just to prevent them from multiplying judgments, so a prevailing plaintiff may not
recover damages from the defendant twice for the same injury.

Statement of problem

This paper seeks to distinguish between the various rights excisable by any person whose
fundamental right has been infringed. Also we aim to relate the concept of res judicata and the
writs issued by the high court and Supreme Court of India.

Identification of the issue

 What are fundamental principles of res judicata?

 What are the powers of high court to issue writs?
 How the concept of res judicata and writs distinguished?
 Can res judicata and writ be related to one another?

Scope of the research

The paper will seek to address the topic of ‘res judicata along with the court’s power to issue
writs’ in minute details as to understand its effects and relevance in today’s judiciary system. For
further deep understanding we would study and critically analyse the articles and provision
mentioned in the Constitution of India.

Chapterization

1. Article 32 and 226.

2. Section 11 of CPC.
3. Res judicata applicable in writs.
4. Res judicata not applicable in writs.
5. Bibliography.
 Article 32 and 226
The constitution of India believes in providing its citizens with equal rights and opportunities,
therefore it states the most important and basic rights available to an individual, known as ‘the
fundamental rights’. Fundamental Rights are those basic rights of the people and the charter of
rights contained in Part III of Indian constitution. It guarantees civil liberties ensuring that all
Indians lead their lives in peace and harmony. 1 Any kind of violation of these rights would result
in punishments as prescribed in the Indian Penal Code or any other special laws, all subject to the
discretion of the judiciary.

The fundamental rights were included in the constitution because they were considered essential
for the development of the personality of every individual and to preserve human dignity.2 All
people, irrespective of race, religion, caste or sex, have been given the right to move the Supreme
Court and the High Courts for the enforcement of their fundamental rights.

Article 32 provides the right to Constitutional remedies, meaning a person has the right to move
to Supreme Court (and high courts also) for the protection of his fundamental rights. 3 While
Supreme Court has power to issue writs under article 32, the same power has been conferred
upon the High Courts under article 226. Further, the power to issue writs can also be extended to
any other courts (including local courts) by Parliament via making a law for local limits of
jurisdiction of such courts.

Importance of Article 32

Article 32 was called the “soul of the constitution and very heart of it” by Dr. Ambedkar. The
Supreme Court of india has included it in basic structure doctrine. Also, it has been made clear

1
http://cs.mcgill.ca/~rwest/wikispeedia/wpcd/wp/f/Fundamental_Rights_in_India.htm
2
https://books.google.co.in/books?
id=an78gq3JwzYC&pg=PA11&lpg=PA11&dq="The+fundamental+rights+were+included+in+the+constitution+becau
se+they+were+considered+essential+for+the+development+of+the+personality+of+every+individual+and+to+pres
erve+human+dignity."&source=bl&ots=XMsNahMDEP&sig=oJyCgMAasu4rTVcSdejG7RSXlh4&hl=en&sa=X&ved=0a
hUKEwi9mZG3vabaAhUGT48KHToaC3QQ6AEINzAB#v=onepage&q="The%20fundamental%20rights%20were
%20included%20in%20the%20constitution%20because%20they%20were%20considered%20essential%20for
%20the%20development%20of%20the%20personality%20of%20every%20individual%20and%20to%20preserve
%20human%20dignity."&f=false
3
https://www.gktoday.in/academy/article/article-32-right-to-constitutional-remedies/
that right to move to Supreme Court cannot be suspended except otherwise provided by the
Constitution.4

Article 32 makes the Supreme Court the defender and guarantor of the fundamental rights.
Further, power to issue writs comes under original jurisdiction of the Supreme Court. This means
that a person may approach SC directly for remedy rather than by way of appeal.

Article 32 can be invoked only to get a remedy related to fundamental rights and not available
for any other constitutional or legal right for which different laws are available.

Importance of article 226

Article 226 of the constitution, confers the High Courts’ wide powers to issue orders and writs to
any person or authority. Before a writ or an order is passed, the party approaching the court has
to establish that he has a right and that right is illegally invaded or threatened. High court can
issue writ and directions, to any Government, authority or person even beyond its territorial
jurisdiction, if the cause of action partly arises within its territorial jurisdiction.5

Wherever questions of facts are involved normally High Court does not exercise its power under
article 226. Similarly, when an alternative remedy is available to the Petitioner, the Courts do not
entertain petitions under Article 226. Also, when there is an inordinate delay in approaching the
court, the court may not give relief acting under this article.

Types of Writs

There are various types of Writs: –

 Habeas Corpus,
 Mandamus,
 Prohibition,
 Quo Warranto and
 Certiorari.

The basic idea in conferring powers under Article 226 upon High Court and article 32 upon the
Supreme Court is to see that the rule of law is maintained in the society. The executive
4
https://www.gktoday.in/academy/article/article-32-right-to-constitutional-remedies/
5
http://www.advocatekhoj.com/blogs/index.php?bid=7384dff0a8c57580980091140&bcmd=VIEW
Authorities are to be corrected whenever they exceed the limits of their power and intrude upon
the rights of the citizen.

Comparison of Supreme Court and High Court in issuing writs

Similarities

Power of issuing writs comes under original jurisdiction (to hear the matter at first instance) of
both Supreme Court and High Courts. An aggrieved person has option to move any of them.

Differences

While Supreme Court has power to issue writs via article 32, High Courts have this power via
article 226.

While Supreme Court has power to issue writs for enforcement of ONLY Fundamental rights,
High Courts can issue writs for enforcement of fundamental rights as well as any other matter
also. Thus, High Court has a wider jurisdiction from Supreme Court in matter of issuing writs.

Supreme Court can issue a writ against any person or authority within the territory of India while
high court can issue such writ under its own territorial jurisdiction. Thus, High court’s writ
jurisdiction is narrower in terms of territorial extent.

Supreme Court cannot refuse to exercise its writ jurisdiction mainly because article 32 itself is a
fundamental right and supreme court is guarantor or defender of fundamental rights. However,
for high courts, exercising the power to issue writs is discretionary.
 Section 11 of CPC
Res Judicata is a phrase, which has been evolved from a Latin maxim “Res judicata pro veritate
accipitur," originally meaning “a matter adjudged is taken for truth" which stand for ‘the thing
has been judged’, meaning there by that the issue before the court has already been decided by
another court, between the same parties and for the same cause of action. 6 Therefore, the court
will dismiss the case before it as being useless. This concept is applicable both in case of Civil as
well as Criminal legal system. 7

Hence, in the case of res judicata, the matter cannot be raised again, either in the same court or in
any other different court. A court will use res judicata to deny reconsideration of a matter.8 This
is to prevent injustice to the parties of a case supposedly finished, but perhaps mostly to avoid
unnecessary waste of resources and time of the Judicial System and so a prevailing plaintiff may
not recover damages from the defendant twice for the same injury.

Res judicata does not merely prevent future judgments from contradicting earlier ones, but also
prevents litigants from multiplying judgments, and confusion.

For making Res Judicata binding, several factors must be met up with:

 Identity in the thing at suit;

 Identity of the cause at suit;
 Identity of the parties to the action;
 Identity in the designation of the parties involved;
 Whether the judgment was final;
 Whether the parties were given full and fair opportunity to be heard on the issue.

Section 11 of Code of Civil Procedure deals with this concept of res judicata. It symbolizes the
doctrine of Res Judicata or the rule of conclusiveness of a judgment, as to the points decided

6
http://www.legalserviceindia.com/article/l454-Res-Judicata.html
7
http://www.legalserviceindia.com/article/l454-Res-Judicata.html
8
Larson, Aaron (3 November 2017). "Issue Preclusion and Claim Preclusion: How Prior Litigation Can Block Your
Claim". ExpertLaw.com. Retrieved 12 December 2017.
either of fact, or of law, or of fact and law, in various subsequent suit between the same parties.
It enacts that once a matter is finally decided by a competent court; no party can be permitted to
reopen it in a subsequent litigation whether in the same court or any other. In the absence of such
a rule there will be no end to litigation and the parties would be put to constant trouble,
harassment and expenses.

The doctrine of Res Judicata is based on three Roman maxims:

(a) Nemo debet lis vaxari pro eadem causa

Meaning: no man should be vexed (annoyed) twice for the same cause;
(b) Interest republicae ut sit finis litium
Meaning: it is in the interest of the state that there should be an end to a litigation; and
(c) Res judicata pro veritate accipitur
Meaning: a judicial decision must be accepted as correct.

Essentials:

1. There must be a final judgment;

2. The judgment must be on the merits;
3. The claims must be the same in the first and second suits;
4. The parties in the second action must be the same as those in the first, or have been
represented by a party to the prior action.

The provisions of Section 11 are not at all exhaustive (full) even though it has very wide and
enlarged amplitude.

The section “does not affect the jurisdiction of the Court” but “operates as a par to the trial” of
the suit or issue, if the matter in the suit was directly and substantially in issue (and finally
decided) in the previous suit between the same parties litigating under the same title in a Court,
then they are not competent i.e. they become barred to try the subsequent suit in which such
issue has been raised.
Thus, this doctrine of Res Judicata is a fundamental concept based on public policy and private
interest. It is conceived in the larger public interest, which requires that every litigation must
come to an end. It therefore, applies to civil suits, execution proceedings, arbitration proceedings,
taxation matters, writ petitions, administrative orders, interim orders, criminal proceedings, etc.

An ordinary litigation being a party or claiming under a party of a former suit cannot avoid the
applicability of section 11 of C.P.C. as it is mandatory except on the ground of fraud or collusion
(secret or illegal cooperation or conspiracy in order to deceive others) as the case may be. The
onus of proof lies on the party relying on the theory of Res Judicata. The provisions of section 11
of C.P.C. are “not directory but mandatory”. The judgment in a former suit can be avoided only
by taking recourse to section 44 of the Indian Evidence Act on the ground of fraud or collusion.

Hon’ble Mr. Justice Das Gupta said, ‘The principle of Res Judicata is based on the need of giving
finality to the judicial decisions’.9

The scope of the principle of Res Judicata is not confined to what is contained in Section 11 but
is of more general application. Res Judicata could be as much applicable to different stages of
the same suit as to findings on issues in different suits.10

In the case11 where the principle of Res Judicata is invoked in the case of the different stages of
proceedings in the same suit the nature of the proceedings, the scope of the enquiry which the
adjectival law provides for the decision being reached as well as the specific provision made on
matters touching such decisions are some of the factors to be considered before the principle is
held to be applicable. Order IX Rule 7 does not put an- end to the litigation nor does it involve
the determination of any issues in controversy in the suit. A decision or direction in an
interlocutory proceeding of the type provided for by Order IX Rule 7 is not of the kind which can
operate as Res Judicata so as to bar the hearing on the, merits of an application under Order IX
Rule 13

Exceptions to Res Judicata:

However, there are limited exceptions to Res Judicata that allow a party to attack the validity of
the original judgment, even outside of appeals. These exceptions - usually called collateral
9
Satyadhan Ghosal v. Deorajin Debi, 1960 AIR 941.
10
http://www.legalserviceindia.com/article/l454-Res-Judicata.html.
11
SatyadhanGhosal v. Deorajin Debi, 1960 AIR 941.
attacks - are typically based on procedural or jurisdictional issues, based not on the wisdom of
the earlier court’s decision but its authority or competence to issue it. A collateral attack is more
likely to be available (and to succeed) in judicial systems with multiple jurisdictions, such as
under federal governments, or when a domestic court is asked to enforce or recognise the
judgment of a foreign court.

In the case of Jallur Venkata Seshayya vs. Thadviconda Koteswara Rao,12 a suit was filed in the
Court for the purpose of declaring certain temples public temples and for setting aside alienation
of endowed property by the manager thereof. A similar suit was dismissed by the Court two
years ago and the plaintiffs here contended that it was the gross negligence on the part of the
plaintiffs (of the previous suit) and hence the doctrine of Res Judicata should not be applied.

In the case,13 it was held that where a minors suit was not brought by the guardian of the minors
bona fide but was brought in collusion with the defendants and the suit was a fictitious suit, a
decree obtained therein is one obtained by fraud and collusion within the meaning of the Indian
Evidence Act, 1872, s. 44 and does not operate Res Judicata.

In another case,14it was held that the writ petitions filed in the Supreme Court are not inter-party
disputes and have been raised by way of public interest litigation and the controversy before the
court is as to whether for social safety and for creating a hazardless environment for the people
to live in, mining in the area must be permitted or stopped. Even if it is said that there was a final
order, in a dispute of this type it would be difficult to entertain the plea of Res Judicata.

12
AIR 1950 Pat 97
13
Beliram and Brothers vs. Chaudari Mohammed Afzal, (1948) 50 BOMLR 674
14
Rural Litigation And Entitlement Kendra vs. State of Uttar Pradesh,1985 AIR 652
 Res judicata applicable in writs
We have often seen lawyers arguing in courts that the suit is struck by the principle of 'res
judicata'. If this plea is accepted by the Bench, in principle, the case in question is rejected right
at the stage of admission itself. According to the dictionary meaning, 'res judicata' means a case
or suit involving a particular issue between two or more parties already decided by a court.
Thereafter, if either of the parties approaches the same court for the adjudication of the same
issue, the suit will be struck by the law of 'res judicata'. The rule of 'res judicata' is based on the
conditions of public policy. It envisages that finality should attach to the binding decisions of the
court so that the individuals should not be made to face the same litigation twice. In cases
involving income tax or sales tax, the general trend is not to apply the doctrine of 'res judicata'.

As explained by the Supreme Court in Instalment Supply (Pvt) Ltd, Vs Union of India,15 'each
year's assessment is final only for that year and does not govern later years, because it determines
only the tax for a particular period. However, it doesn't mean that tax authorities can reopen
arbitrarily a question previously settled. The principle of 'res judicata' has been held to apply to
industrial adjudication when a matter in dispute in a subsequent case had earlier been directly
and substantially in issue between the same parties and it had been heard and finally decided by
the tribunal. The reason for this view is that multiplication of litigation, agitation and re-agitation
of the same dispute between the same parties is not conducive to industrial pace. However, in
applying this principle, extreme technical considerations, usually invoked in civil proceedings,
may not be allowed to outweigh substantial justice to the parties in industrial adjudication. 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.16

“If a writ petition filed by a party under Art. 226 is considered on the merits as a contested
matter and is dismissed the decision thus pronounced would continue to bind the parties unless

15
(AIR 1976 SC 53)
16
M S M Sharma Vs Sinha, AIR (1960) SC 1186
 it is otherwise modified or reversed by appeal or other appropriate proceedings permissible
under the constitution ………..”17

We can therefore state from the above statement made by their Lordships of the Supreme Court
that once an issue has been heard and decided by a High Court in a writ proceeding, the said
finding would operate as res Judicata in a subsequent proceeding involving the same issue
between the same parties and bar the parties for further suits.

In another case,18 their Lordships of the Supreme Court has held that the principle of constructive
res Judicata underlying under Explanation IV of Section 11 of CPC is applicable to writ
proceedings and observed in paragraph 20 as under :-

“20. So far as the first reason is concerned, the High Court in our opinion was not right in
holding that the earlier judgement would not operate as res Judicata as one of the grounds taken
in the present petition was conspicuous by its absence in the earlier petition. Explanation IV to
Section 11 CPC provides that 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
substantially in issue in such suit. An adjudication is conclusive and final not only as to the
actual matter determined but as to every other matter which the parties might and ought to have
litigated and have had it decided as incidental to or essentially connected with the subject-
matter of the litigation and every matter coming within the legitimate purview of the original
action both in respect of the matters of claim or defence. The principle underlying Explanation
IV is that where the parties have had an opportunity of controverting a matter that should be
taken to be the same thing as if the matter had been actually controverted and decided. It is true
that where a matter has been constructively in issue it cannot be said to have been actually
heard and decided. It could only be deemed to have been heard and decided. The first reason,
therefore, has absolutely no force.”

Therefore, 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

17
Daryao and others v. State of U.P. and others (1961) AIR 1457
18
Forward Construction Co. And others V. PrabhatMandal and others (1986) AIR 391
petition after another urging one or two new grounds each time, thus causing hardship to the
opponent.

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. 19 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'. 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 Union of India 20, 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.

Res judicata not applicable in writs

The concept of issuance of a writ has achieved its significance as it is one such enforcement
device leading to achieving the benefit of fundamental rights in their literal sense. A writ is

19
Sunil Duttvs Union Of India AndOrs. on (1982)AIR SC 53
20
(1979) AIR 1328
defined as a kind of special order sealed to any authority, government or any sovereign body in
furtherance of abstinence or execution of a specified act. Our constitution specifies five writs
which are Prerogative Writs, meaning they can be considered as a privilege or right exclusively
for a specific category or class.

Issuance of any of these five writs has to be by the way of Article 32 or Article 226 for Supreme
Court and High Court respectively. Article 226 has a broader jurisdiction than that of article 32
as SC can issue writs only when there is a fundamental right infringement, on the other hand, HC
can issue these in both ordinary legal rights violation and fundamental rights violation.

The writs available are namely-

1. Habeas Corpus,
2. Mandamus,
3. Prohibition,
4. Certiorari and
5. Quo Warranto.

As we have already established that the concept of res judicata is applicable on writs except on
the writ of habeas corpus. This writ (meaning, you may have the body) has been given the status
of the most important writ out of all the five as it deals majorly on the liberty and justice of an
individual. It is issued in matters when there is a need to produce the detenu before the court so
as to judge the preconditions and dimensions of his arrest. The writ refers to a legal procedure
which prevents the government to hold a person unnecessarily i.e. without any just cause and
provides for the explanation given by the detainee to the court of law regarding the grounds of
the detention of the detained person.

The writ thus became a means of testing the legality of detention and in this form, it may be
regarded as the immediate ancestor of the modern writ of habeas corpus. The major object of this
writ is that it provides for a prompt and effective remedy against any restraint which is illegal
and unreasonable, and its sole purpose lies in the enforcement of personal freedom and right of
liberty. Personal liberty being the very essence carrier of our Constitution needs to be well taken
care of, and hence writ of habeas corpus has proven itself as one of such steps towards
establishing of civil or personal liberty protection.
When the writ of habeas corpus has been refused by the High Court, The petitioner can file an
independent petition for the same writ under Article 32 of the Constitution. Not only once or
twice, but repeatedly.

The rule of constructive Res Judicata does not apply because there may be certain exceptions to
the rule that:

a. The person was not aware of correct facts while filing the first petition, or
b. Events have arisen subsequent to filing of the first petition.

The court must bear in mind that the doctrine of res judicata is confined generally to civil actions
but inapplicable to criminal actions and fundamentally lawless order.

The question regarding whether or not a new plea can be raised during the hearing of the writ
petition, it has been stated that no fresh issue can be evoked during the pleadings of writs, but
Habeas Corpus is an exception to this. But no such plea can be allowed if the respondent has no
opportunity to rebut or controvert the plea and it may result in prejudice to the other side.21

When the question of whether principle of res judicata applies in case of writ petition of Habeas
Corpus, it was held that, “So far as Indian Law is concerned, it is fairly well settled that no
second petition for a writ of habeas corpus on the same grounds is maintainable if an earlier
petition is dismissed by the court”.22 But this principle would not stand where the forums in
which subsequent filing is there, have independent existence from one another and are entirely
separate in competency and jurisdiction.

Habeas corpus being a writ of course or right may be refused if there is no cause shown. It,
however, cannot be refused on the ground that an alternative remedy is available to the
applicant.23

21
Arun Kumar v. State of W.B., (1972) 3 SCC 893
22
LallubhaiJogibhai v. Union of India, (1981) 2 SCC 427
23
R. v. Pell, (1674) 3 Keb 279: 84 ER 720