State briefly whether the principle of Res Judicata would be applicable in the following case? “If the previous suit was dismissed for default.”

Question: State briefly whether the principle of Res Judicata would be applicable in the following case? “If the previous suit was dismissed for default.” [UPHJS. 1995, Raj J.S. 1974]

Find the answer to the mains question only on Legal Bites. [State briefly whether the principle of Res Judicata would be applicable in the following case? “If the previous suit was dismissed for default.]

Answer

The essential condition of Section 11 of CPC is that the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by a court in the former suit. The expression heard and finally decided means a matter on which Court has exercised its judicial mind and has after argument and consideration come to a decision on a contested matter.

In the case of Shivashankar Prasad Shah & Ors v. Baikunth Nath Singh, 1969 AIR 971, the Supreme Court held that Before a plea can be held to be barred by res judicata that plea must have been heard and determined by the court. Only a decision by a court could be res judicata, whether it be statutory under section 11, Civil Procedure Code, or constructive as a matter of public policy on which the entire doctrine rests.

Similarly, in the case of Sheodam Singh v. Daryao Kunwar, 1966 AIR(SC) 1332 it was held that if the decision in the former suit is not on merits, then the case cannot be said to have been heard and finally decided.

The examples of such cases could be that the former suit was dismissed by the trial Court for want of jurisdiction, or for default of Plaintiff’s appearance, or on the ground of non­joinder of parties or mis­joinder of parties or multifariousness or on the ground that the suit was badly framed, or on the ground that a technical mistake, or for failure on the part of the Plaintiff to produce probate or letters of.

Hence, it can be said that the doctrine of res judicata will not apply “if the previous suit is dismissed for default.”

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