Will the rule of res judicata operate if a suit was dismissed on the plea of limitation without adjudicating merits. A subsequent suit was filed in which the same pleas were raised.

Question: Will the rule of res judicata operate if a suit was dismissed on the plea of limitation without adjudicating merits. A subsequent suit was filed in which the same pleas were raised.

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Answer

The last part of Section 11 of CPC provides that to constitute res judicata the matter must have been heard and finally decided by the Court. It is not only enough that the parties are the same or the same matter is directly and substantially in issue in both the suits.

Hence, the section requires that the decision should be final with regard to the former suit. Thus, if in a judgment or decree it is written that it is subject to some decision of the higher court, then it cannot be said to be a final one.

A matter can only be said to have been heard and finally decided notwithstanding that the former suit was disposed of:

1. Ex- parte decree
2. By failure to produce evidence (order 17, Rule 3)
3. By a decree or an award
4. By oath tendered under the India Oaths Act, 1873.

The following conditions must be fulfilled before any matter is said to have been heard and finally decided:

1. The decision in the former suit must have been on merits
2. The decision in the former suit must have been necessary to the determination of that suit.

Hence, if a suit is dismissed on the ground of the limitation without going into the merits of the case, then it cannot be said to have been finally decided.

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