Professional Documents
Culture Documents
TABLE OF CONTENT
CHAPTER I
INTRODUCTION
OBJECT OF THE STUDY
HYPOTHESIS
RESEARCH METHODOLOGY
SOURCES OF DATA
SCOPE OF STUDY
CHAPTER II
CHAPTER III
CHAPTER IV
CHAPTER V
BIBLIOGRAPHY
CHAPTER I
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INTRODUCTION
Res in Latin means thing and Judicata means already decided. This rule operates as a bar to
the trial of a subsequent suit on the same cause of action between the same parties. Its basic
purpose is One suit and one decision is enough for any single dispute. The rule of res
judicata does not depend upon the correctness or the incorrectness of the former decision. 1 It is a
principle of law by which a matter which has been litigated cannot be relitigated between the
same parties. This is known as the rule of res judicata (thing decided). The aim of this rule is to
end litigation once a matter has been adjudicated. It aims to save the court time and prevent
harassment to parties.
The term res judicata in common parlance refers to the various ways in a judgment in which one
action will have a binding effect in another. In modern terminology, these binding effects are
called claim preclusion2. It must be distinguished from the second effect which is called
collateral estoppel or issue preclusion3. Res judicata is a broadterm which encompasses
both issue preclusion or claim preclusion. The effect of issue preclusion is that an issue
determined in a first action may not be re-agitated when the same issue arises in a later action
based on a different claim or demand.4
This doctrine is well found in the history of any legal society and thus can be taken as one of the
well established doctrine. In India, this Doctrine is being incorporated in Sec 11 of The Civil
2 Claim preclusion focuses on barring a suit from being brought again on a legal cause of action
that hasalready been finally decided between the parties.
3 Issue preclusion bars the re-litigation of factual issues that have already been necessarily
determined by ajudge or jury as part of an earlier claim.
4 See 94 US 351 352-353, 24 Led. 195, 197-198 (1877) wherein the distinction between issue
preclusionand claim preclusion has been formulated by Mr. Justice Field in Crownwell v. County
of Sac.
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Procedure Code. The essentials for application of this doctrine in any legal proceeding are being
discussed in the subsequent chapters. Also, the doctrine of Res Judicata is applicable in other
legal situations apart from general civil cases like Arbitration proceeding, Income Tax
proceeding, Public Interest Litigation, etc.
This doctrine of Res Judicata is different from doctrine of Res Sub Judice as Res judicata is
applied to bar a further suit on same subject matter between same parties whereas res sub-judice
is applied only to stay the subsequent suit when there is a former pending suit on same subject
matter.
Sub Judice in Latin means Under Judgement. It means matter pending for judicial enquiry. It
denotes that a matter or case is being considered by Court or Judge that is where court has not
determined the dispute. This principle applies where there is cross suit. When two or more cases
are filed between the same parties on the same subject matter, in two or more different Courts,
the competent court has power to Stay Proceedings. So the proceedings are suspended when
the matter is already being considered by another court. In India, this concept is encapsulated in
S.10 of Civil Procedure Code.
Section 10 reads as: No Court to proceed with trail of any suit in which the matter in issue, is
also directly and substantially in issue. In previously instituted suit between the same parties, or
between parties under whom they or any of them claim, litigating under the same title, where
such suit is pending in same or any other Court, in India, Having jurisdiction to grant relief
claimed.
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The main object of the researcher is to focus on the provision of THE RES SUBJUDICE AND
RES JUDICATA and also a comparative study of the two. Other objective is also to gain
knowledge as to what are the necessary changes that should be done and amendments are
needed.
HYPOTHESIS
Both the doctrine are based on the principle of need of giving a finality to judicial decision.
RESEARCH METHODOLOGY
The researcher has relied mainly on the doctrinal source of methodology and with the available
material it has relied on the data, magazines, journals, articles, text books, internet and similar
such sources.
SOURCES OF DATA
The researcher has relied both on the primary and the secondary source of data. The primary
source of data includes all the enactments such as, Constitution of India 1950, The Civil
Procedure Code 1908, Indian Evidence Act, Specific Relief Act and various other such similar
sources. The secondary source of data includes webpage, newspaper, books, etc.
SCOPE OF STUDY
By doing the research on this very topic has further enhance the knowledge about the provision
of Res Subjudice and Res Judicata.
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CHAPTER II
The provisions of section 10 of the code are clear, definite and mandatory5.A court in which a
subsequent suit has been filed is prohibited from proceeding with the trial of that suit in certain
specified circumstances. Since however the provisions of the section are mandatory the court
before which the subsequent suit is pending ought to stay it where all the conditions laid down in
the section exists. When there is a special provision in code for dealing with the contingencies of
two such suits being instituted, recourse to the inherent power ender section 151 is not justified.
The provisions of this section do not become inapplicable on a court holding that the previously
instituted suit is a vexatious suit or has been instituted in violation of terms of contract. Even
where the provisions of section 10 of the code do not strictly apply, a civil court has inherent
power under section 151 to stay a suit to achieve the ends of justice
In SK Rungta vs naval devi Prasad 6 it has been held that though normally the court would not
allow a party to move an application under section 10 of the code unless he has filed a written
statement, the court would entertain the application of the defendant for stay in a case where he
has annexed the copy of the plaint in the previously instituted suit and can be found out from the
copy of that plaint as to what the dispute between the parties is. Where the perusal of the two
plaints was not enough to find out whether the subject matter of the controversy between the
parties in the two suits was identical or not, he could have kept the application pending but he
should not have dismissed the application at the stage. The court can entertain the application
under section 10 at any stage of the suit provided there is material on the record to decide the
question regarding the applicability of section 10 of the code. It is usually to be decided after
filing written statement as once it has been filed court is in the better position to know as to
whether the matter in issue in both suits is directly and substantially the same or not. However
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this does not mean that the court has no jurisdiction to entertain the application prior to the filing
of written statement.
NO BAR TO FILE SECOND SUIT: Though the heading of this section is stay of suit it does
not operate as a bar to the institution of the subsequent suit. It is only the trial of the suit that is
not to be proceeded with7. Section 10 applies to the trial of a suit and not the institution thereof.
The subsequent suit, therefore, cannot be dismissed by a court, but is required to be stayed.
It also does not preclude a court from passing interim orders, such as, grant of injunction or stay,
appointment of receiver8 etc. It however applies to appeals 9 and revisions. An order of stay does
not take away the power of the court from passing interim orders. Hence, in a stayed suit, it
is open to the court to make interim orders, such as, attachment before judgment, temporary
injunction, appointment of receiver, amendment of plaint or written statement, etc
OBJECT: In Indian Bank V Maharashtra State Co-Operative Marketing Federation 1998 it was
held that the object of prohibition in S.10 CPC, is to,
Prevent Courts of concurrent Jurisdiction from simultaneously trying two parallel cases
In P.V. Shetty v. B.S. Giridhar10, it was held that for the application of this section, the following
conditions must be satisfied: The conditions that are needed for Res Sub Judice to apply are:
7 Maharashtra state federation ltd v Indian Bank, AIR 1997 Bom 186.
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SUIT FILED IN A CIVIL SUIT: As stated section 10 of the code is preferable to a suit
instituted in a civil court. The proceedings before a labour court cannot be equated with the
proceeding before the civil court. They are not the courts of concurrent jurisdiction. Dees Piston
Ltd V State Bank of India : It was held that when a matter is before a competent Civil Court, the
National Commission will not entertain a petition in respect of identical subject matter under
Consumer Protection Act
MATTERS IN ISSUE DIRECTLY AND SUBSTANTIALLY THE SAME : One of the most
essential conditions of section 10 is that the matter in issue in the later suit which is sought to be
stayed must be directly and substantially in issue in the earlier suit which is pending in the same
or in any other court of concurrent jurisdiction. A mere identity of some of the issues in both the
suits is not sufficient to attract the section. Unless the decision of the suit operates as res Judicata
in the other suit, it cannot be said that the matter is directly and substantially the same in both
the suits. In other words, the decision in one suit must non-suit the other suit before it can be said
that the matter in both the suits is directly and substantially the same. All the issues in the second
suit must be determined by the decision in the first suit before section 10 can come into
operation. The words matter in issue in section 10, C.P.C., means the entire matter in
controversy and not one of the several issues in the case.
SAME PARTIES: Parties must file suit in same relationship, they must make allegations in same
capacity.
BOTH COURTS MUST BE COMPETENT: Court must be competent to decide the dispute. If
court is not competent then the suit will be returned. Both courts must have competency. The suit
must be pending in an Indian court. If it is pending in foreign court and subsequent suit is filed in
Indian court then this principle will not apply even though other conditions are fulfilled. So if
previous court does not have competency and latter court has then this section will not apply
10 AIR 1982 SC 83
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CHAPTER III
"Res judicata pro veritate occipitur" is the full latin maxim which has, over the years, shrunk to
mere "Res Judicata". The concept of Res Judicata finds its evolvement from the English
Common Law system, being derived from the overriding concept of judicial economy,
consistency, and finality. Under the Roman Law, a defendant could successfully contest a suit
filed by a plaintiff on the plea of ex captio res judicata. It was said, as one suit and one
decision is enough for any single dispute
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Nemo debet bis vexari pro una et eadem causa ( no man should be punished twice for the
same cause);
Interest reipublicae ut sit finis litium (it is in the interest of the state that there should be
an end to a litigation);
Res judicata pro veritate occipitur (a judicial decision must be accepted as correct).
For making Res Judicata binding, several factors must be met up with:
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the principle of Res Judicata is based on the need of giving a finality to the judicial
decisions. What it says is that once a res judicata, it shall not be adjudged again.
Primarily it applies as between past litigation and future litigation. When a matter-
whether on a question of fact or a question of law has been decided between two
parties in one suit or proceeding and the decision is final, either because no appeal was
taken to a higher court or because the appeal was dismissed, or no appeal lies, neither
party will be allowed in a future suit or proceeding between the same parties to canvas
the matter again.
The essential ingredients of Res Judicata are to be considered while deciding whether a particular
judgment operated as res judicata or not be postulated as follows:
Matter which was directly and substantially in issue in former suit must be directly and
substantially issue in the subsequent suit also.
Both the former and subsequent suit should have been between the parties or between the
parties litigating under some titles.
The former suit should have been decided by competent court which can try subsequent
suit also.
Any matter, which might and ought to have been made a ground of defence or attack in
such former suit shall be deemed to have been a matter directly and substantially in issue
in each suit.
The onus of proof lies on the party relying on the theory of res judicata.
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Though Section 11 of CPC is largely modified even then it is not exhaustive. The plea of res
judicata still remains apart from the separate provisions of CPC. The statement of doctrine of res
judicata contained in Section 11 of CPC is not exhaustive and there fore recourse may properly
be had to the decisions of the English Courts for the purpose of ascertaining the general
principles governing the application of the doctrine. The terms of section 11 are not to be
regarded as exhaustive. The binding force of a judgement in probate proceedings depends upon
the section 11 but upon the general principles of law. The rule of Res Judicata though may be
traced to an English source it embodies a doctrine in no way opposed commentators. The
application of the rule of res judicata therefore by the Courts in India should be included by no
technical consideration of form but by matter of substance within the limit allowed by law.
If any one or more conditions are not proved, the principle of res judicata would not apply.
Where all the four conditions are proved, the Court has no jurisdiction to try the suit thereafter as
it becomes not maintainable and liable to be dismissed. For application of principle of res
judicata, existence of decision finally deciding a right or a claim between parties is necessary.
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CHAPTER IV
1 Res judicata applies to a matter adjudicated upon, res Subjudice applies to a matter pending
trial.
2 Res judicata bars the institution of a suit or an issue which has been decided in a former suit,
res sub judice bars trial of a suit which is pending decision in a previously instituted suit.
3 Section 10 does not prohibit filing of second suit. While section 11 does prohibit.
4 The object behind principle of res Subjudice is to avoid and evade judicial conflicts where
matter is the same. Section 11 is based on public policy principles.
The object of the rule contained in section 10 is to prevent courts of concurrent jurisdiction from
simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same
cause of action, the same subject-matter and the same relief. The policy of law is to confine a
plaintiff to one litigation, thus obviating the possibility of two contradictory verdicts by one and
the same court in respect of the same relief. 13 The object of this section is at outset different from
13 Balkishan v. Kishan Lal, ILR (1889) 11 All. 148 (FB).
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that of Sec 11 i.e., of the Doctrine of Res Judicata, but ultimately the final object of both the
doctrines, i.e., to reduce number and prevent duplicacy of litigations.
The doctrine of Res Sub-judice intends to protect a person from multiplicity of proceedings and
to avoid a conflict of decisions. It also aims to avert inconvenience to the parties and gives effect
to the rule of Res Judicata.14
The major difference between these two sections is that the Doctrine of Res Judicata under
Sec.11 bars the institution of suit concerning same subject matter between same parties but the
Doctrine of Res Sub judice under sec.10 does not bar the institution of a suit, but only bars a
trial, if certain conditions are fulfilled. The subsequent suit, therefore, cannot be dismissed by a
court, but is required to be stayed whereas in case of Res Judicata, the subsequent suit is liable to
be dismissed.
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CHAPTER V
The Doctrine of Res Judicata can be understood as something which restrains the either party to
move the clock back during the pendency of the proceedings. The extent of Res Judicata is very-
very wide and it includes a lot of things which even includes Public Interest Litigations. This
doctrine is applicable even outside the Code of Civil Procedure and covers a lot of areas which
are related to the society and people. The scope and the extend has widened with the passage of
time and the Supreme Court has elongated the areas with its judgments.
Thus, the doctrine of Res Judicata enacts that once a matter is finally decided by a competent
court, no party can be permitted to reopen it in a subsequent litigation. In the absence of such a
rule there will be no end to litigation and the parties would be put to constant trouble, harassment
and expenses. This doctrine of res judicata is a fundamental concept based on public policy and
private interest. It is conceived in the larger public interest, which requires that every litigation
must come to an end. It therefore, applies to civil suits, execution proceedings, arbitration
proceedings, taxation matters, writ petitions, administrative orders, interim orders, criminal
proceedings, etc. An ordinary litigation being a party or claiming under a party of a former suit
cannot avoid the applicability of section 11 of CPC as it is mandatory except on the ground of
fraud or collusion as the case may be.
Section 10 states that during pendency of first litigation if second suit has been filed either in
same court or other court where subject matter is of like such nature then the second suit will be
stayed. This principle applies to civil suit. Where one is civil case and another civil suit the
principle does not apply. Suit here includes appeal, when during pendency of appeal new suit is
filed. Object: The object of S.10 is to prevent Courts of concurrent jurisdiction from
simultaneously, trying two parallel cases, in respect of same matter in issue. The two fold objects
are:
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The conditions that are needed for Res Sub Judice to apply are:
Unless all these conditions are fulfilled section 10 cannot be applied so while staying second suit
court must see that all the above conditions are fulfilled. In various cases court held that these
conditions must necessarily be fulfilled. Hence the hypothesis is correct.
Res Judicata does not restrict the appeals process, which is considered a linear extension of the
same lawsuit as the suit travels up (and back down) the appellate court ladder. Appeals are
considered the appropriate manner by which to challenge a judgment rather than trying to start a
new trial. Once the appeals process is exhausted or waived, Res Judicata will apply even to a
judgment that is contrary to law. There are limited exceptions to Res Judicata that allow a party
to attack the validity of the original judgment, even outside of appeals. These exceptions usually
called collateral attacks are typically based on procedural or jurisdictional issues, based not on
the wisdom of the earlier court's decision but its authority or on the competence of the earlier
court to issue that decision.
Therefore, Res Judicata in a nut shell is a judicial concept wherein the Courts do not allow a
petition to be filed in the same or to the other Court for the doctrine of Res Judicata would apply
and the party would not be allowed to file the petition or to continue the petition (as the case may
be).
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BIBLIOGRAPHY
1 PRIMARY SOURCES
LEGISLATION
The Code Of Civil Procedure, 1908
2. SECONDARY SOURCES
BOOKS
Takwani, C.K., Civil Procedure, 7th Edition, Eastern Book Company, Kolkata, 2013
Sarkar, Sudipto, Sarkar Code of Civil Procedure, V.K. Manohar (Ed.), 9th Edition, Vol. I, Wadhwa and
Company, Nagpur, 2001
Mulla, The Code of Civil Procedure, Binod Mohan Prasad (Ed.), 17th Edition, Lexis Nexis
Butterworths, New Delhi, 2007
Mallick, M.R., Mitra's Civil Procedure, 4th Edition, Eastern Law House, Kolkata, 2002
Sir D.F. Mulla, The Code Of Civil Procedure, 7th Edition, Volume 1, Lexis Nexis
Butterworths.
B.M.Prasad, The Code Of Civil Procedure, 18th Edition, 2011, Volume 1, Lexis Nexis
Butterworths.
Basu, The Code of Civil Procedure, 10th Edition, 2007, Volume 1, Ashoka Law House
ONLINE SOURCES
https://www.nls.ac.in/lib/bareacts/civil/cpc/cpco15.html
http://www.shareyouressays.com/114316/legal-provisions-of-order-xv-of-code-of-civil-
procedure-1908-c-p-c-india-disposal-of-the-suit-at-the-first-hearing
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http://www.advocatekhoj.com/library/lawareas/relief/hearing.php?Title=Civil
%20Procedure%20Code%20Relief&STitle=Disposal%20of%20the%20suit%20at
%20first%20hearing
http://delhihighcourt.nic.in/writereaddata/upload/courtrules/courtrulefile_7vp2yezq.pdf
http://indiankanoon.org/doc/613137/
http://www.wipo.int/edocs/lexdocs/laws/en/tz/tz014en.pdf
http://lawlessons.ca/sites/default/files/handouts/LP-3.1-Final.pdf
http://www.lawteacher.net/free-law-essays/civil-law/cause-of-action-in-a-civil-suit.php
http://legal-dictionary.thefreedictionary.com/Civil+Procedure
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