Does the failure to raise an alternative plea in the former suit which is inconsistent with the main plea operate as res judicata in the later suit? Give reasons and also refer case-law, if any, on the point?

Question: Does the failure to raise an alternative plea in the former suit which is inconsistent with the main plea operate as res judicata in the later suit? Give reasons and also refer case-law, if any, on the point? [UPHJS. 1995]

Find the answer to the mains question only on Legal Bites. [Does the failure to raise an alternative plea in the former suit which is inconsistent with the main plea operate as res judicata in the later suit? Give reasons and also refer case-law, if any, on the point? [UPHJS. 1995]]

Answer

No, failure to raise an alternative plea that is inconsistent with the main plea in the suit will not operate as res judicata in the later suit- Dola v. Balya (1922) 24 BOMLR 236.

The principle of constructive res judicata given in Explanation IV of Section 11 of CPC provides that a party to the suit should take all the alternative pleas of defence or grounds available to them.

If the parties fail to do so, then it is presumed that a party has raised all the alternative pleas and they have been heard and decided by the court.

But if the alternative plea is inconsistent with the main plea, then in that case the principle of res judicata will not apply.

For example, if a person claims a certain house on the basis of a sale deed in a suit and the suit is dismissed, now, if a person again files a suit in respect of the same house and this time raises the plea of gift deed, then it is not barred because the alternative plea taken by the person this time is inconsistent with the main plea or we can say that both pleas are inconsistent with each other as the plea of sale deed must have involved consideration money whereas the gift must be without consideration.

Hence, because of the above reason, failure to raise an alternative plea that is inconsistent with the main plea in the suit will not operate as res judicata in the subsequent suit.

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