Is a proforma defendant bound by the doctrine of res judicata? Give reasons and also refer to case-laws on the point.

Question: Is a proforma defendant bound by the doctrine of res judicata? Give reasons and also refer to case-laws on the point. [BIHAR J 1986]

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Answer

Section 11 of the code of Civil Procedure, 1908, embodies the rule of res judicata or the rule of conclusiveness of the judgment, as to the points decided either of facts, or of law, or of facts and law, in every subsequent suit between the same parties. It enacts that once a matter is finally decided by a competent Court, no party can be permitted to reopen it in subsequent litigation.

A defendant to a suit against whom no relief is claimed is called a pro forma defendant. A person may be added as a proforma defendant in a suit merely because his presence is necessary for a complete and final decision of the questions involved in the suit.

In such a case, since no relief is sought against him, a finding does not operate as res judicata in a subsequent suit against him.

Illustration: A sues B for possession of property contending that he is a tenant of C. C is joined as pro forma defendant and no relief is claimed against him.

The suit is dismissed as the Court finds B to be the owner. C then sues B for possession on the basis of title. B’s contention that the issue regarding ownership of property is res judicata must fail as the issue was decided in the former suit between A and B and not between C and B as C was only a proforma defendant.

In the case of ‘Nibaranchandra Shaha v. Motilal Shaha’, 62 Cal 642 (P) some of the defendants were described as ‘pro forma’ defendants, and the learned Judges observed-

“On the facts of this case, I cannot, however, “give effect to the plea of ‘res judicata’. No relief was claimed in the money suit against the plaintiffs. They were not necessary parties at all to that suit and, although it may have been thought desirable to have them as parties defendants, their position was that of ‘pro forma’ defendants only”.

In the case of Gita Ram Kalsi v. S. Prithvi Singh AIR 1956 PH 129, the court held that a proforma defendant is as much bound by the decision as to the other parties if any proforma defendant had right to be heard or control the proceedings, he is bound by the doctrine of res judicata even though, he was joined as a formal party and no relief was claimed against him.

Hence, a decision may operate against a proforma defendant in a previous suit when it is clear that his interest was identical to that of the plaintiff although no relief was claimed against him.

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