The Calcutta High Court held that the doctrine of res judicata does not bar a subsequent application for filing an affidavit under Section 65B of the Evidence Act when the earlier application pertained to different documents. Clarifying that res judicata applies only when the same matter is directly and substantially in issue, the Court allowed the plaintiff to file an affidavit for additional documents within two weeks.
Background & Facts
The Dispute
Glen Industries Limited (plaintiff) filed an interlocutory application (IA NO. GA-COM/7/2026) seeking direction to file an affidavit under Section 65B of the Evidence Act, corresponding to Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), for certain documents not covered in an earlier order. United India Insurance Company Limited (defendant) opposed the application on the ground of res judicata and constructive res judicata, contending that the issue had already been decided by the Court’s order dated December 1, 2025 in IA NO. GA-COM/5/2025.
Key Facts
- On December 1, 2025, the Court in IA NO. GA-COM/5/2025 allowed the plaintiff to file an affidavit under Section 65B of the Evidence Act, restricted to two documents only.
- The instant application (IA NO. GA-COM/7/2026, Old No. CS/80/2023) relates to various other documents except those two, as specified in paragraph 5 of the application, with Annexure “E” at page 20.
- The suit underlying the application is CS-COM/497/2024.
- The matter was heard on September 23, 2026 and judgment pronounced the same day.
Procedural History
- December 1, 2025: Order passed in IA NO. GA-COM/5/2025 permitting affidavit for two documents.
- September 23, 2026: Hearing of IA NO. GA-COM/7/2026.
- September 23, 2026: Judgment delivered.
- The Court directed that the affidavit be filed within two weeks from the date of judgment, i.e., by October 7, 2026.
Relief Sought
The plaintiff sought permission to file the necessary affidavit under Section 65B of the Evidence Act for the documents listed in paragraph 5 of the application. The defendant sought dismissal of the application on the grounds of res judicata and constructive res judicata.
The Legal Issue
The central question was whether the doctrine of res judicata or constructive res judicata bars a subsequent interlocutory application for filing an affidavit under Section 65B of the Evidence Act when the earlier application pertained to a different set of documents. Specifically, the Court had to determine whether the matter of filing an affidavit for additional documents was directly and substantially in issue in the prior proceeding, and whether the plaintiff could have raised the same plea in the earlier application.
Arguments Presented
For the Plaintiff/Petitioner
Glen Industries Limited argued that the earlier order dated December 1, 2025 was limited to two specific documents and did not address the affidavit requirement for the other documents sought in the present application. Counsel relied on the principle that res judicata applies only when the same matter is directly and substantially in issue in both proceedings. Since the subject-matter (the set of documents) differed, there was no bar. Furthermore, the plea of constructive res judicata could not succeed because the plaintiff had not been negligent; the documents in question were not part of the earlier application and the plaintiff had not deliberately withheld the plea.
For the Respondent/Defendant
United India Insurance Company Limited contended that the issue of filing an affidavit under Section 65B of the Evidence Act had already been decided by the Court’s order of December 1, 2025, invoking res judicata. It also argued constructive res judicata, asserting that the plaintiff could have and should have included the plea for the additional documents in the earlier application, and the failure to do so amounted to negligence. The defendant relied on Satyadhyan Ghosal and Others vs. Deorajin Debi (Smt.) and Another, AIR 1960 SC 941, and Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and Others, (2020) 7 SCC 1, to support the contention that the doctrine applies to subsequent applications seeking the same relief.
The Court's Analysis
The Court began by noting that the doctrine of res judicata requires that the matter in issue in the subsequent proceeding must have been directly and substantially in issue in the former proceeding and must have been heard and finally decided by a competent court. Referring to the earlier order of December 1, 2025, the Court observed that the permission granted therein was expressly restricted to two documents only, as recorded at page 17 of the application. The instant application, however, pertains to various other documents except those two, as specified in paragraph 5 of the application with Annexure “E” at page 20. Consequently, the subject-matter of the two proceedings is distinct, and the requirement of direct and substantial identity of issue is not satisfied.
On constructive res judicata, the Court explained that the doctrine applies only when a plea could have been raised in the former proceeding but was not, due to the party’s negligence. The defendant’s reliance on Satyadhyan Ghosal and Arjun Panditrao Khotkar was misplaced because those judgments dealt with situations where the same cause of action or the same issue was involved. Here, the plaintiff had not omitted the plea out of negligence; the documents in question were simply not part of the earlier application, and there was no indication that the plaintiff had deliberately refrained from raising the plea. The Court further emphasized that the earlier order did not decide any right or liability between the parties; it was merely a procedural direction concerning the filing of an affidavit for limited documents, leaving the suit awaiting its final trial.
The Court also observed that allowing the defendant’s argument would effectively prohibit a party from seeking procedural directions for additional documents at any stage of the litigation, which would be contrary to the principles of fair procedure and the objective of the Evidence Act to facilitate the proof of electronic records. It held that filing an affidavit under Section 65B of the Evidence Act is a procedural act that cannot be denied in the facts of the case, and any objection regarding the recording of evidence could be raised at the time of final hearing.
"In view of the foregoing reasons and discussions, the plaintiff shall be allowed to file necessary affidavit under Section 65B of the Evidence Act , corresponding to Section 63 of BSA only in respect of the documents mentioned in paragraph 5 of the application being Annexure “E” at page 20 to the instant application and not beyond that, within two weeks from date."
Finally, the Court directed that the plaintiff be allowed to file the necessary affidavit under Section 65B of the Evidence Act, corresponding to Section 63 of BSA, only in respect of the documents mentioned in paragraph 5 of the application, being Annexure “E” at page 20, and not beyond that, within two weeks from the date of judgment. It made clear that the defendant remains free to raise any objection regarding the recording of evidence at the final hearing. The application was disposed of without any order as to costs.
The Verdict
The plaintiff, Glen Industries Limited, succeeded in its application. The Court held that the plaintiff shall be allowed to file a necessary affidavit under Section 65B of the Evidence Act, corresponding to Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, only in respect of the documents listed in paragraph 5 of the application (Annexure “E” at page 20), and not beyond that, within two weeks from the date of judgment, i.e., by October 7, 2026. No order as to costs was passed.
What This Means For Similar Cases
Res Judicata Requires Identity of Subject-Matter
The doctrine of res judicata bars only when the same matter is directly and substantially in issue in both proceedings. As the Calcutta High Court clarified, an earlier order permitting an affidavit under Section 65B for two specific documents does not preclude a later application for different documents, because the subject-matter differs. Practitioners should therefore assess whether the documents or facts involved in the subsequent application were actually decided in the prior proceeding.
- If the earlier order dealt with a limited set of documents, a subsequent affidavit for other documents is not barred.
- The identity of issue must be examined carefully; mere similarity of relief (affidavit under Section 65B) is insufficient.
Procedural Directions Under Section 65B Are Not Barred by Earlier Limited Orders
A prior order restricting an affidavit under Section 65B to certain documents does not operate as res judicata for a subsequent application concerning additional documents. The Court treated the affidavit filing as a procedural act that can be allowed for distinct sets of documents at different stages of the suit.
- Parties may seek fresh directions under Section 65B for new electronic records as they emerge during litigation.
- Any objection to the admissibility of such records can be raised at trial, preserving the defendant’s rights.
Objections to Electronic Evidence Can Be Raised at Trial
The Court made clear that allowing the affidavit does not preclude the defendant from challenging the recording or authenticity of the electronic evidence. Objections regarding compliance with Section 65B can be taken up at the final hearing.
- Defendants should preserve their right to object to the affidavit’s compliance with Section 65B at trial.
- Plaintiffs must ensure the affidavit is limited to the documents specified in the application to avoid overreach.
