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I. Introduction

Section 10 of CPC deals with the Doctrine of Res Sub Judice, whereas section 11 deals with Doctrine of Res Judicata.

II. Res Sub Judice

1)Section 10

The object of 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 section protects a person from multiplicity of proceedings and to avoid a conflict of decisions. The section does not bar the institution of a suit, but only bars trial , if certain conditions are fulfilled. Illustration: A an agent of B at Delhi agreed to sell Bs goods in Chennai. A the agent files suit for balance of accounts in Chennai. B sues the agent A for accounts and his negligence in Delhi; while case is pending in Chennai. In this case, Delhi Court is precluded from conducting trail and A can petition Chennai Court to direct stay of proceedings against Delhi Court.

2) Conditions

i) There must be Two suits, one previously instituted and other subsequently.

ii) The matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit.

iii) Both the suits must be between the same parties or their representatives.

iv) The previously instituted suit must be pending in the same court or any other court in India or any court beyond the limits of India established or continued by the central court or before the SC.

v) The court in which the previous suit was instituted must have jurisdiction to grant the relief claimed in the subsequent suit.

vi) Such parties must be litigating under the same title in both the suits.

Manohar Lal vs Seth Heralal (1962)

It was held as soon as the above conditions were satisfied. A court cannot proceed with the subsequently instituted suit since provisions conducted in Section 10 are mandatory

Pukhraj D Jain vs. G Gopalakrishnan (2004)

Section 10 however does not take away power of the court to examine themerits of the matter. If the court is satisfied that subsequent suit can be decided purely on legal point, it is open to the court to decide such suit.

3) Test

The test for the applicability of Section 10 is whether the decision in previously instituted suit would operate as res judicata in the subsequent suit. If it is so, the subsequent suit must be stayed.

4) Foreign Court

If the previously instituted suit is pending in a foreign court, their is no bar in power of an Indian court to try a subsequent instituted suit.

5) Inherent power to stay

Jado Rai vs Onkar Prasad (1975)

Even if Section 10 does not apply , civil court has inherent powers u/s 151 to stay a suit to achieve the ends of Justice.

Contravention Effect

A decree passed in contravention of Section 10 is not a nullity, and therefore, cannot be disregarded in execution proceedings. Again as stated above, it is only the trial and not the institution of the subsequent suit which is barred under this section. Thus it lays down a rule of procedure, pure and simple, which can be waived by a party. Hence, if the parties waive their right and expressly ask the court to proceed with the subsequent suit, they cannot afterwards challenge the validity of the subsequent proceedings.

III. Res Judicata

1. Section 11:

Section 11 embodies the doctrine of Res Judicata or the rule of conclusiveness of a judgement as to the points divided either of fact or of law or of fact and law in every subsequent suit between the same parties. It enacts that once a matter is finally decided by a competent court, no party can be permuted to reopen it in a subsequent litigation.

Satyadhan Ghosal Vs. Deorjin Debi (1960)

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. 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 one suit and one decision is enough for single dispute

2. Nature and scope

Lalchand Vs. Radhakrishnan (1977)

Doctrine of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded on justice, equity and good conscience which requires that the party who has once succeeded on an issue should not be harassed by multiplicity of proceedings involving the same issue.

3. Object:

The Doctrine of Res Judicata is based on three maxims:

(i) nemo debet bis vexari pro una et eadem i.e. no man should be vexed twice for the same cause.

(ii) interest reipublicae ut sit finis litium i.e. it is in the interest of the state that there should be an end to litigation.

(iii) Res Judicata pro veritate occipitur i.e. a judicial decision must be accepted as correct.

4. Essentials of Res Judicata.

i. Matter directly and substantially in issue: It is essential that the matter could have been directly and substantially in issue in the former suit, which is different from matters collaterally and incidentally in issue in the former suit. It should have been alleged by one party and denied or admitted by other party either expressly or by necessary implication.

ii. Suit or issues between the same parties: If the parties are different Res Judicata is not applicable. As a matter maybe a Res Judicata between Plaintiff and Defendant so also it may be Res Judicata between co-plaintiffs and co-defendants.

iii: Litigation under the same title: The parties to the subsequent suit must have litigated under the same title as in the former suit.

Illustration: A sues B for possession of property as an owner basing his claim on title. The suit is dismissed. A subsequent suit by A against B for the possession of the same property as mortgagor is not barred.

iv: Competent Court: The decision to operate Res Judicata must be the decision of a competent court. Judgement obtained by fraud or collusion does not operate as Res Judicata.

5. Matter heard and finally decided:

The matter is heard and finally decided, even if suit was disposed of:

(i) Ex parte

(ii) By dismissal for failure of party to produce his evidence

(iii) By decree on an award

(iv) The oath tendered upon the Indian Oaths Act 1873.

Not finally heard if former suit was dismissed:

(i) For want of jurisdiction or dismisse

(ii) For failure to furnish security for cost

(iii) For default of plaintiffs appearance

(iv) For failure on the part of the plaintiff to produce probate or letter of administration to entitle him to a decree.

(v) Relief claimed but not expressly granted:

If a relief is claimed in a suit but it is not expressly granted in the decree, it will deem to have been refused and the matter in respect of which the relief is claimed will be Res Judicata.

5. Exceptions to Res Judicata

(i) Negative finding on custom: If the Court has given negative finding on the point of custom in a civil suit, such point of custom may be raised in a subsequent suit

(ii) Judgement obtained by fraud or collusion: If the judgement is obtained by fraud or collusion ina former suit such jurisdiction cannot operate as Res Judicata

(iii) Judgement given by incompetent court: If the judgement is given by the court having no jurisdiction, it will not operate as Res Judicata.

(iv) Consent Decree: The rule of Res Judicata does not apply to the consent decree because in cae of such decree, the matter in isuue cannot be said to have been heard and finally decided.

6. Constructive Res Judicata:

The principle of Res Judicata may be divided in two parts i.e. Express and Constructive. Provision in explanation IV u/s 11 provides for constructive Res Judicata. Any matter which might and ought to have been made as a ground of attack for defence in a former suit shall be deemed to have been directly and substantially in issue in such suit. If a plea could have been taken by a party in a proceeding between him and his opponent, should not be permitted to take that plea against the same party in the subsequent proceeding with reference to the same subject matter

Kinds of matters:

Directly and substantially in issue

a) Matters actually in issue

b) Matters constructively in issue

2) Collaterally and incidentally in issue.

Illustration: A files a suit against B for declaration that he is entitled to certain lands as heir of C. The suit is dismissed. The subsequent suit claiming the same property on the ground of adverse possession, is barred by constructive Res Judicata.

7. Difference between Res Judicata and Res Sub judice.

a) The rule of Res Judicata is applicable when the matter is adjudicated while Res Sub Judice is applied when it is pending in Court.

b) Res Judicata bars the trial of a suit or an issue which has been decided in a former suit whereas Res sub judice bars trials of a suit which is pending decision in previously instituted suit.

8. Difference between estoppels and Res Judicata

i) The Doctrine of Res Judicata results from the decision of the Court while estoppels results from the acts of parties themselves.

ii) The doctrine of Res Judicata proceeds on the ground of public policy while the rule of estoppels proceeds on the doctrine of equity.

iii) Res Judicata ousts the jurisdiction of a court to try a case and precludes an enquiry in limine while estoppel is only a rule of evidence and shuts the mouth of a party.

iv) Res Judicata prohibits a man averring the same thing twice in successive litigations while estoppels prevents him from saying one thing at one time and the opposite at another.

v) Res Judicata binds both the parties to litigation while estoppel only binds that party who made the previous statement or showed the previous conduct.

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