Pradeep Nandrajog, J.

1. An interesting question of law arises for consideration in the instant petition. It concerns the inherent power which a court of justice must possess to prevent misuse of its procedures in relation to an action initiation whereof may apparently be not inconsistent with the literal application of the law but otherwise would be manifestly unjust and unfair to the defendant amounting to an abuse of the process of law. In turn the question encompasses the scope of the principle of rest judicata: Is Section 11 of the Code of Civil Procedure 1908 exhaustive of the sweep of rest judicata How is the principle of rest judicata impacted by Sections 40 to 43 of the Indian Evidence Act 1872 Do the inherent powers of the court permit it to stifle a suit, cause whereof was an essential part of a prosecution for an offence under Section 138 of the Negotiable Instruments Act 1881 in particular when the suit is sought to be litigated with the same quality and quantity of evidence as formed the basis of the prosecution for the offence under Section 138 of the Negotiable Instruments Act 1881?

2. Explaining rest judicata and its twin effect, George Spencer Bower in his treaties The Doctrine of rest Judicata IInd Edition, page 1, has to say:

I. In English jurisprudence a rest judicata, that is to say a final judicial decision pronounced by a judicial tribunal having competent jurisdiction over the cause or matter in litigation, and over the parties thereto, disposes once and for all of the matters decided, so that they cannot afterwards be raised for re-litigation between the same parties or their privies. The effect of such a decision is two-fold.

Parties estopped from averring to the contrary

2. In the first place, the judicial decision estops or precludes any party to the litigation from disputing, against any other party thereto, in any later litigation, the correctness of the earlier decision in law and fact. The same issue cannot be raised again between them, and this principle extends to all matters of law and fact which the judgment, decree, or order necessarily established as the legal foundation or justification of the conclusion reached by the Court.

Transit in rem judicator

3. In the second place, by virtue of the decision the right or cause of action set up in the suit is extinguished, merging in the judgment which is pronounced. Transit in rem judicator . The result is that no further claim may be made upon the same cause of action in any subsequent proceedings between the same parties or their privies.

3. The term res judicata and the term estoppel by record have at times been used (indiscriminately if I may beg to use the expression) to signify either, or both, resultant effect of binding nature of a final judicial decision pronounced by a court of competent jurisdiction. Spencer Brown however explains that it would be advisable to distinguish the two as: estoppel per rem judicator ; and, transit in rem judicator.

4. Two reasons support the jurisprudence of rest judicata. First the general interest of the society/community in termination of disputes by according finality and conclusiveness to judicial decisions. Secondly to protect the right of individuals from vexatious multiplication of suits and prosecutions at the instance of an opponent. The former is public policy and is succinctly expressed in the maxim interest (or expedit) reipublicae ut sit finis litium. The latter is private justice and is reflected in the maxims nemo debet bids vexari pro una et eadem causa and in connection with criminal litigation nemo debet bids vexari pro uno et eodem delicto.

5. In para 13 of his publication, George Spencer Bower has following to write:

13. The applicability of the rule both to civil and criminal proceedings, both to decisions of courts of record and to those of other judicial tribunals, and both to English and to foreign rest judicatae, is justified by, and rests upon, the same theoretical basis o