Will the rule of res judicata operate if the suit is dismissed by the trial court for default or want of jurisdiction?

Question: Will the rule of res judicata operate if the suit is dismissed by the trial court for default or want of jurisdiction?

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Answer

Section 11 of CPC provides that to constitute res judicata the matter must have been heard and finally decided by the Court. The section requires that there should be the final decision on which the court has exercised its judicial mind and the decision must be made on merits.

But where the suit has been dismissed by the Trial court for want of jurisdiction or default, the matter cannot be said to have been heard and finally decided.

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, the principle of res judicata will not apply to cases where the suit is dismissed in default or for want for jurisdiction.

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