A Restatement of the Law of Res Judicata in India

Abstract

The law of res judicata is a universal principle of law which requires that matters judicially determined must not be re-litigated. In India, this law is embodied in section 11 of the Code of Civil Procedure, 1908. However, the Indian courts have also resorted to what they call a ‘general law’ to effect res judicata when the statutory law is inapplicable. This paper employs two approaches to study the development of the law of res judicata in India: legislative and interpretational. It begins with a brief narration of the historical background to the statutory law. It then picks up three distinctive features of the statutory law to analyze how the content of the general law of res judicata, created and developed through judicial interpretations, compares to that of the textual law. Next, the paper maps the terminologies that Indian courts use for articulating this general law onto those used by the statute for defining the statutory law. Through a comparison of the vocabularies of the two laws, the paper shows the operating requirements of the general law. The paper then discusses the scope of application of general law by looking at the situations in which courts have invoked it. By studying the general law in contrast to the statutory law, the paper argues thus: (a) the general law neither answers to the common law of res judicata nor suffers the limitations of the statutory law. (b) This court-created general law is the law of res judicata reduced to its bare essentials which makes it applicable in almost all situations – even in situation where the statutory law is the controlling law (c) with its unfettered scope; the general law appears to have taken away the exclusivity of the statutory law. The paper then concludes by restating the principle clause of statutory law to bring it in conformity with the law of res judicata, as it stands today in India.