Res Judicata and change in Law

May 04, 2020

            Res Judicata is the legal principle included in Section 11 of The Civil Procedure Code, 1908. It provides that the court does not have the power to try a new suit that has been already adjudged in a previous suit[1]. In India the position remains clear as upheld in Tarini Charan Bhatterjee vs. Kedar Nath Halder that the principle of res judicata does not apply when the legislature alters the law by statute, as it will substantiate as a ‘change in law’ exception. There has often been confusion as to the constituents of ‘change of law’ and its interpretation through the lens of res judicata. The essay to such extent will delve into the constituents of res judicata in change in law and its equation through a change in circumstances standpoint.

            In India a series of court judgements have been ruled in favor of disallowing Res Judicata during a ‘change in law’ circumstance. Changes in law are constituted only either as a legislative change or judicial decisioning. Legislative changes that occur after deciding a legal decision tends to affect the recourse sought by parties and alter probable judicial decisioning. In the Alimunissa v. Shama Charan, the reasoning provided by Maclean C.J, was that the cases are supposed to only be dealt in the courts on the basis of existing laws of the country only and not on what existed during a previous suit. He also opined that ‘if a law has been altered by a statute, the objection of res judicata fails with immediate effect’[2]. The discussion in the Tarini Charan Bhatterjee case was principled on the basis of legislative changes or other changes of law wherein the rights of the parties are altered, only then the nullification of res judicata applies. But if the court finds that the rights of the parties are not altered due to the change in law then the court cannot assume to have the power to change the rights of the parties and will not have the right to allow re-litigation in same suit. This position opined by the Indian courts have narrowed down the possibility of a wide spectrum of exceptions to res judicata within change in law cases. But, the right of the courts to re-litigate a ‘question of law’ remains intact and unaffected by the principles of res judicata.
In England, to allow an accommodating stance on the issue of legislative changes the House of Lords decided in Henderson v Henderson[3] that res judicata can be foregone during certain ‘special circumstances’ only. But the position in the English system as to whether ‘change in law’ can be accommodated as within ‘special circumstances or not’ remains uncertain. In a later case in Berkeley v Berkeley[4], the court had upheld res judicata for an already decided case and held that only new petitions, post an amendment to an existing law can be allowed and already decided petitions will be barred by res judicata.
In India multiple judgements have been pronounced in favor of upholding the circumvention of res judicata and allowing retrial post legislative changes[5]. In regard to judicial decisions which tend to create new laws with retrospective application can be considered as changes in law as it can possibly alter the findings in another case and thus res judicata will not be applicable in such case. For example, the Supreme Court in Shayara Bano v. Union of India upheld the unconstitutionality of instant triple talaq which resulted in the creation of a judicial law, this being considered a probable change in law having retrospective application would then be considered as an exemption for the principle of res judicata. The same principle will apply in common law systems, as court decisions are considered changes/creation of laws. But the limitation in the application of such judgements as changes in law remains on the basis of retrospective applicability and the differentiation adhered to from a stare decisis narrative. The jurisprudence behind the prevention of res judicata claim for a change in law scenario is attributed to the judicial value that might be affected whilst deciding an issue. Judicial values which form part of equity and good conscience is considered the foundation of justice and alteration of law and application of res judicata will be an impediment to such extent.
In the American legal system, the issue of change in law has not remained the same throughout while deciding a res judicata application. The Supreme Court of California in Slater v Blackwood disallowed for re-litigation of suits on the grounds of res judicata, even after the same court held that the law in contention to be unconstitutional in a subsequent suit[6]. This position was followed for a considerable period of time until the court in City of Los Angeles v City of San Fernando subsequently held that res judicata is not applicable when trying a case which deals with a question of law and not merely of facts[7]. Question of law was to be considered the preposition for allowing re-litigation in the US courts because of varying views contended in alternate supreme courts in different stats and no single binding principle on certain judicial decisioning exists as of now. The position remains bizarre and many scholars have envisioned for an immutable principle of res judicata during similar circumstances to avoid the confusion created due to altering judicial precedents on res judicata within their legal framework[8].

            Having established that res judicata will not apply for cases in change in law situations in India, some intricacies still remain in defining the exact constituents of ‘change in law’ other than the two mentioned. Such other sources include customs, societal principles, religious texts which at times are considered as law. Some societal norms and customs that constitute as law may change over a period of time and perception of certain legal principles and consideration can be altered throughout the legal discourse. The accommodation of such changes in deciding res judicata and its significant bearing on the issue of justice delivery is still unclear. Societal understanding of certain laws or customs which change over a course of time due to altering perceptions and education, whether be considered change in law or not is uncertain. To circumvent this problem and arrive at a probable conclusion, the discussion will now delve into the comparison of change in law as a change in circumstances scenario and conclude by deciding if the former falls within the ambit of changing of circumstances.
The House of Lords defined ‘circumstances’ as occurrences or accessory facts which follow or surround or accompany after or during a certain event and impacts the outcome of such events[9]. The position of change in circumstances in India was upheld in Surajmal v. Radheyshyam wherein, if there is a change in circumstance, res judicata will not apply and re-litigation be allowed on the basis of bona fide requirement only[10]. As discussed earlier, a change in law though not having a fact-based effect on the proceeding of a case, it will have significant and substantive bearing on the judicial outcome of the process. The importance of changing circumstances can be understood better in family related cases that provide for divorce on certain grounds of changing circumstances[11]. Especially in India, the family law decisions are arrived when presented arguably in a change in circumstances scenario. For example, in Pramod Purshottam Patkar vs Vasundhra Pramod Patkar the court allowed for re-litigation of divorce suit when there was a change in circumstances on grounds of cruelty while filing for divorce[12].
To now try and equate the position of change in circumstance and change in law, the opinion for disallowing res judicata must be applicable because of the changing notions of law and its applicability in the country. With modernization comes better liberalization of ideas and promotion of improved tolerance to change. If certain changes in laws do not fall within the two contemporary components of change in law, the remedy to such prevention must be through the lens of ‘change in circumstance’. Though res judicata is a procedural principle, it has helped overcome the problems of red tape and excessive court burden, but such should not be the position when laws are changed and there is clear obstruction of justice. The courts must provide for the circumvention of strict principles of res judicata by viewing both change in circumstance and change in law as an overlapping exception of res judicata and allow for re-litigation in certain cases where inherent judicial values have been abrogated or affected in pursuance to such changes. Though, no courts have yet dealt with the plausibility of the application of change in circumstances during alteration of laws, allowing such re-litigation by the court will better provide justice in a subsequent suit.

In comparison with other legal systems, India’s legal space provides for the most stable solution for the problem of change in law-based res judicata application. The Indian courts have established the principle of res judicata in a position wherein injustice is prevented, and efficiency of courts are also upheld. This positioning of the principle highlights the importance of the due-process model set forth in the code, promoting the importance of procedural law and its effect on judicial equity. To conclude, change in law is a valid exception of res judicata in India and there is a plausibility to accept change in law as a change in circumstances position to circumvent the strict principles of res judicata.

[1] 'Res Judicata' (Legal Information Institute, 2019) <>
[2] Alimunissa v Shama Charan (1905) 32 Cal 749
[3] Bethel Henderson v Elizabeth Henderson and Others (1843) 3 Hare 100.
[4] Berkeley v Berkeley [1946] AC 555.
[5] C. K Takwani, Civil Procedure (8th edn, Eastern Book Co. 2017) 120
[6] Slater v Blackwood (1975) 47 Cal App 3d 450
[7] City of Los Angeles v City of San Fernando (1975) 14 Cal 3d 199
[8]Judith M. Rosenberg, 'Res Judicata: New Standards For Evaluating The Effect Of A Change In Law After Judgment' (1978) 30 Hastings Law Journal <> accessed 21 August 2019.
[9] Pfaffenbach v Railroad 142 Ind 246.
[10] Surajmal vs Radheyshyam [1988] SC 1345.
[11] C. K Takwani, Civil Procedure (8th edn, Eastern Book Co. 2017) 120
[12] Pramod Purshottam Patkar vs Vasundhra Pramod Patkar [1989] AIR 1989 Bom 75.

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