School of Law and Governance,

Central University of South Bihar

Project Assignment Submission
On
Nemo devet vis vexari pro eadem causa”-critical appraisal & some
jurisprudential ground behind the evolution of resjudicata

((Assistant Professor, School of Law & Governance Central University of South Bihar))

Submitted By:-AVINASH RANJAN

B.A.LL.B. (Hons.) 5 th Semester.
Enrollment Number-CUSB1913125121.
SECTION-A

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 🎭: ACKNOWLEDGEMENT

I wish to take this opportunity to express my deep gratitude to all those who helped,
encouraged, motivated and have extended their co-operation in various ways during my
project work. It is my pleasure to acknowledge the help of all individuals who were
responsible for foreseeing the successful completion of my project work.

I would like to thank and express my gratitude with great admiration and respect to my
professor Dr. DE0 NARAYAN SINGH for his valuable advice and help throughout the
development of this project by providing me with required information. Without his
guidance, co-operation and encouragement, this project couldn't have been materialized.

Last but not the least; I would like to thank the entire respondents for extending their help in
all circumstances.

AVINASH RANJAN

(CUSB1913125121)

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 TABLE OF CONTENT

Serial no. contents Page no.

1 Introduction

2 The doctrine of res judicata is based on three maxims:

3 Essential conditions of res judicata

4 Purposes of res judicata

5 CONCLUSION

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 Research Method and Research Methodology

The research method used here is doctrinal in nature and research methodology is
interpretivist. The main objective drawn by this research is all about understanding the
relevance of Topic- Nemo devet vis vexari pro eadem causa”-critical appraisal & some
jurisprudential ground behind the evolution of resjudicata. The sources used in the research
reflect the primary one. I as a researcher did my best to adhere to the ethical aspect of
research and avoided plagiarism.

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 🎭: GENERAL HISTORICAL BACKGROUND OF RES JUDICATA

The doctrine of res adjudicata is plain and intelligible, and amounts simply to this, that a
cause of action once finally determined, without appeal, between the parties, on the merits, by
a competent tribunal, cannot afterwards be litigated by new proceedings either before same or
any other tribunal.'1

This characterization of res judicata,2 as a simple, easily applied legal doctrine, may have
been valid at one time; however, such a reputation was short-lived. Disparate interpretation of
the doctrine by courts and scholars alike has transformed res judicata into a legal labyrinth.

The basic precept that an official determination upon a disputed fact or state of facts should
be regarded as final and conclusive between the parties is a rule common to virtually every
system of jurisprudence.3Roman law provided for an exceptio rei judicatae or plea of former
judgment; the plea was available only when a subsequent controversy involved the same
parties and same point of law. This concept became a part of the jurisprudence of England
and was the forerunner of our res judicata principles of merger and bar.

A second branch of the doctrine, collateral estoppel, is the progeny of medieval Germanic
law. This concept was based upon the principle that determinations made in a prior suit were
conclusive in a subsequent suit founded upon a wholly different cause of action. The
conclusive effect of the first suit was based upon the statements of the party; thus, the parties
were estopped to assert the same facts in the second suit.

These two principles, merger/bar and collateral estoppel, are collectively known as res
judicata. Although the two wholly different concepts are sometimes confused, courts have
sought to establish and maintain the distinction. As early as 1876 the United States Supreme
Court, in Cromwell v. County of Sac,4 clearly distinguished between the effect of a prior
judgment '(as a bar) in a subsequent suit involving the same cause of action, and its effect (as
an estoppel) in a later suit involving a different claim or cause of action.

1
Foster v. The Richard Busteed, 100 Mass. 409, 412 (1868); 2 H. BLACK, JUDGMENTS § 504 (2d ed. 1902)
[hereinafter cited as BLACK].
2
Literally, "res judicata" means "a matter adjudged; a thing judicially acted upon or decided; a thing or matter
settled by judgment." BLACK'S LAW DICTIONARY 1470 (rev. 4th ed. 1968).
3
2 BLACK § 500.
4
94 U.S. 351 (1876).

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🎭: same issues or questions of fact arise in a subsequent suit, the first judgment is conclusive
as to those matters actually litigated and determined in the former action.'5Thus, the party is
"estopped" to relitigate or challenge those facts or issues in the second suit.

In modern usage, the generic term "res judicata" is often used in reference to the principles of
merger/bar and collateral estoppel either collectively or individually. The two principles are
based upon identical policy considera- tions, and there is an understandable overlap in the
development of the doc- trines.6In addition, there is often confusion between res judicata
(generially speaking) and other legal doctrines which affect a party's rights in sub- sequent
litigation.

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RESTATEMENT § 68.
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The primary inquiry in this Article is a determination of what constitutes a "cause of action" for the purposes
of merger and bar. While some of the discussion is relevant to the subject of collateral estoppel, further
development of that principle is beyond the scope of this Article. For a comprehensive discussion of collateral
estop- pel, see McGlinchey, Collateral Estoppel in Texas, 4 Hous. L. REV. 73 (1966); Scott, Collateral Estoppel
by Judgment, 56 HARv. L. REV. 1 (1942); Vestal, supra note 15; Developments in the Law

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 INTRODUCTION

The Latin maxim “Nemo Debet Bis Vexari Pro Una Et Eadem Causa” translates to no person
should be punished twice for the same offence. It embodies the well-established common law
rule that no one should be put to punishment twice for the same offence. In criminal law, this
Latin term is known for the rule against double jeopardy, i.e. the notion that a person should
not be “vexed” or punished more than once for any particular case brought against them. In
civil law, it means a person should not be sued more than once over the same case.

“Double jeopardy” refers to the protection against facing a trial or punishment more than
once for the same criminal offense. It prevents the imposition of multiple punishments for the
same offense. Article 20 of the Constitution of India enshrines the protection against double
jeopardy: It is a fundamental right guaranteed under Article 20 (2) of the Constitution of
India, which states that— “No person shall be prosecuted and punished for the same offense
more than once”. It prohibits the infliction of punishment to a person for the “same offense”
more than once. Apart from that let’s understand about res judicata.

According to Section 117:- Res Judicata means a final judicial decision pronounced by a
judicial tribunal having competent jurisdiction over the cause or matter in litigation and over
the parties thereto.

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Section 11 of the code of Civil Procedure, 1908

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 S.11; Res Judicata

No Court shall try any suit or issue:-

the same title,

Example
A sues B for damages for breach of contract. The suit is dismissed. A subsequently filed
another suit against B for damages for breach of the same contract. The subsequent suit shall
be barred by the principle of res-judicata, because B shall not be vexed twice over for the
same cause.

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 The doctrine of res judicata is based on three maxims:

1. Nemo debet bis vexari pro una et eadem causa:-

2. Interest reipublicae ut sit finis litium:-

end to a litigation

3. Res judicata pro veritate occipitur:-

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 Res judicata in short

Res judicata is a Latin expression or term that means matter once adjudicated, cannot be re-
adjudicated. The doctrine of res judicata technically means that a matter is issue which has
already been tried by competent court, then trial between the same parties in respect of the
same matter shall not be allowed. It is a very important doctrine in civil justice system, it
emphasis that a subject matter of the suit which has already been decided, is deemed to be
decided forever, and cannot be reopened by the same parties. The rule of res-Judicata is based
upon the principle that no person should be vexed twice for the same cause of action. Our
constitution provided that no one should be vexed twice.

Similar doctrine also can be found under provisions of the Code of Criminal
Procedure,1898.

In criminal Justice system this doctrine is called double jeopardy. The General
Clauses Act, 1897 also provided similar provision, as follows, where an act or
omission constitutes an offence under two or more enactments, then the offender shall
be liable to be prosecuted and punished under either or any of those enactments, but
shall not be liable to be punished twice for the same offence.

However, no Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former suit
between the same parties, or between parties under whom they or any of them claim,
litigating under the same title, in a court competent to try such subsequent suit or the
suit in which such issue has been subsequently raised, and has been heard and finally
decided by such Court.

The expression “former suit” shall denote a suit which has been decided prior to the
suit in question whether or not it was instituted prior thereto.

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 For the purposes of this section, the competence of a Court shall be determined
irrespective of any provisions as to a right of appeal from the decision of such Court.

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

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.

Any relief claimed in the plaint, which is not expressly granted by the decree, shall,
for the purposes of this section, be deemed to have been refused.
Where persons litigate bona fide in respect of a public right or of a private right
claimed in common for themselves and others, all persons interested in such right
shall, for the purposes of this section, be deemed to claim under the persons so
litigating.

Example

Nirzar sues Reza for damages for breach of contract. The suit is dismissed. A subsequent suit
by nirzar against Reza for damages for breach of the same contract is barred Nirzar’s right to
claim damages from Reza for breach of contract having been decided in the previous suit, it
becomes res judicata, and cannot therefore be tried in the subsequent suit. Reza cannot be
vexed twice over for the same cause.

Essential conditions of res judicata

d substantially in issue in the subsequent suit &

t & subsequent suit must be the same.

cided the former suit must be a competent court.
een decided on merits and final decision should have been made
after hearing.

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 Purposes of res judicata

The doctrine of res-judicata is based upon there roman maxims namely, nemo debet bis
vexari pro un et eadem causa, means no man should be vexed twice over for the same cause
of action and Interest republicae ut sit finis litium, means it is to the interest of the State that
there should be an end to litigation. The first maxim looks to the interest of the litigant, who
should be protected from a vexatious multiplicity of suits. The second maxim is based on the
ground of public policy that there should be an end to litigation. The third number maxim is
res judicata pro veritate occipitur means a judicial decision must be accepted as correct. This
maxim is also based on public policy.

If suits are allowed to be endlessly for the same cause of action it will be impossible for
existing courts to deal with the overgrowing number of suits. Unlimited or perpetual litigation
disturbs the peace of the society and leads to disorder and confusion. Therefore the main
objects of the res-judicata are to prevent-

(1) injustice to the parties of a decides suit;

(2) unnecessary waste of court resources,

(3) multiplicity of suit

(iv) recovery of damages from the defendant twice for the same injury Principle of res
judicata is intended not only to provent a new decision, but also to prevent a new
investigation, so that the same person cannot be harassed again and again in various
proceedings upon the same question.

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 Kinds of res-Judicata

Res-Judicata can be classified into two: 1.

a) Direct res judicata or actual res judicata

(b) Constructive res judicata

Direct resjudicata:-

It means a matter actually resolved by court, between the parties in earlier suit cannot be
reopened through subsequent suit. Explanation 3 deals with the direct res judicata. It provides
that the matter above referred to must in the former suit have been alleged by one party and
either denied or admitted, expressly or impliedly by the other.

Constructive Res Judicata:-

It is the interest of justice that a party should bring forward his whole case in respect of the
matter in suit. Constructive res judicata means a matter which might and ought to have been
made ground of claim or defense in a former suit, but a party ignores it, then the issue shall
be deemed to have been a matter directly and substantially in issue in such suit. in other
words if a party had an opportunity that he ought to have taken a plea as a plaintitf or
defendant, if he fails to do so, and the matter is decided the decision will operate as res-
judicata in respect of all issues, which were taken and which ought and might have taken and
second suit would not lie for such issue.

Principle of constructive res judicata is that if the disputed subject matter are so framed as to
afford ground for final decision in the first suit, then they are not to be disposed of by
subsequent suit.

Thus the earlier suit was for declaration of title and the latter suit for declaration of title and
recovery of possession, the latter suit is barred by res judicata.

Principle of constructive res judicata is applicable to execution proceeding.

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 Ex parte decree and res-judicata

Where the plaintiff appears and the defedant does not appear when the suit is called on for
hearing, then if it is proved that the summons was duly served, the court may proceed ex
parte. An exparte decree passed by a competent court on merits will operate as res judicata,
because the effect of exparte decree as like as by-parte decree. But the doctrine of res judicata
does not apply to a consent decree, because in a consent decree a matter cannot be said to be
heard and finally decided on merits, the decision in the former suit will operate as res judicata
though the suit was decreed exparte.

Foreign judgment and res judicata

Section 13 provide that 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, where it has been pronounced by a court of
competent jurisdiction. So if a foreign judgment is delivered on merits by a court of
competent jurisdiction in the matter, it would operate as res judicata.

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 Important Explanations of S.11

Explanation I. (Former suit) “Former suit” shall denote

 a suit which has been decided prior to the suit in question

 whether or not it was instituted prior thereto.

Explanation III. (Direct Res judicata) The matter above referred to in the former suit

 have been alleged by one party and

 either denied or admitted, expressly or impliedly, by the other.

Explanation IV. (Constructive Res judicata) 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.

Explanation V. (Deem to refuse) Any relief claimed in the plaint,

 which is not expressly granted by the decree,

 shall be deemed to have been refused.

Mandatory Provision S.11 is mandatory and not directory in nature. The judgment in a former
suit can be avoided only by taking recourse to s.44 Evidence Act, 1872 on grounds of fraud
or collusion. Gross negligence in former suit doesn’t 10 amount to fraud or collusion and thus
acts as bar to subsequent suit.

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 CONCLUSION

Res judicata principle reflects also under section 403 of Code of Criminal Procedure, 1898;
under Article-35(2) of Constitution, under section-40 of Evidence Act,1872, under section -26
of General Clauses Act, 1897.

***

This is my humble submission of the topic “Nemo devet vis vexari pro eadem causa”-critical
appraisal & some jurisprudential ground behind the evolution of resjudicata” designated to
me. I thank one and all

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 BIBLIOGRAPHY

REFERENCE & BOOK:-

Mulla,The Code of Civil Procedure, 3 Volumes, Lexis-Nexis Butterworth-Wadhwa,( 2011),

,

Code of Civil Procedure, 3 Volumes, Eastern Book Company (2011).

Book Company (2006).

REFERENCE:-

1. www.gktoday.com
2. www.wikipedia.org/governmentofindiaact1919
3. www.legalbites.in
4. indiankanoon.org.
5. https://byjus.com/free-ias-prep/ncert-notes-government-of-india-act-1919

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