Q :- Distinguish between resjudicata and estoppel.

Q :- Distinguish between resjudicata and estoppel.

Answer :Some jurists have sometimes said that the resjudicata is a part of the doctrine
of estoppel . But the doctrine of resjudicata and the doctrine of estoppel
essentially differ from each other . Estoppel is the doctrine of law of evidence
and prevents any party from blowing hot and cold at different occasions
according to his sweet will . On the other hand , resjudicata prevents a person
from harassing other by successive litigations on the same cause . The points
of difference may be better explained by the following tabular form .
Resjudicata
1. The principle of resjudicata is a part
of law of procedure and is founded on
the ground of public policy that there
should be an end to the litigation. It is
contained in section 11 of CPC.

Estoppel
On the other hand , the principle of
estoppel is a part of law of Evidence
and founded on the principle of equity
that one should not be permitted to say
different things at different occasions
.It is contained in section 115 of the
Indian Evidence Act .
2. The Doctrine of resjudicata is the Whereas doctrine of estoppel is the
result of a decision of a Court of result of the act of parties .
law .
3. Resjudicata ousts the jurisdiction of Whereas estoppel is only a rule of
Court and prohibits the Court from evidence and prohibits a party from
trying any matter or issue already proving a different fact , other than
finally decided.
what he stated earlier , by adducing
evidence .
4.The truth of the former decision is The rule of estoppel prevents a person
conclusively presupposed by the plea from denying what he once induced
of resjudicata.
another to believe to be true and to act
upon it.
5. Resjudicata binds both the parties to Estoppel binds only that party who
a litigation .
made the previous statement.
6. The doctrine of resjudicata aims at The doctrine of estoppel aims at
bringing an end to the litigation.
keeping a party at only one point what
he stated to be true and induced
another to act upon such belief.
7. Resjudicata shuts the door of a On the other hand , estoppel shuts the
person to open it for agitating the same mouth of a person to speak hot and
cause in successive litigations .
cold at different occasions .

Q :- What is the suit of a civil nature ? What is the nature of

the suit in which right to property or to an office is contested ?
Will it make any difference if such right depends entirely on
the decision of questions as to religious rights or ceremony
Q :- What is the suit of a civil nature ?
What is the nature of the suit in which right to property or to an office is
contested ?
Will it make any difference if such right depends entirely on the decision of
questions as to religious rites or ceremonies ?
Will a suit lie against an intruder for a declaration that the office of a religious
order is vested in the plaintiff ?
Answer :Section 9 of the Civil Procedure Code confers jurisdiction on the civil courts .
Section 9 of CPC provides that the civil courts shall have jurisdiction to try all
suits of a civil nature excepting suits of which their cognizance is expressly or
impliedly barred.
What are the suits of civil nature has been explained by the Explanation I and II
of section 9 .
According to the explanation I , a suit in which right to property or to an office
is contested is a suit of civil nature notwithstanding that such rights may
depend entirely upon the decision of question as to religious rites or
ceremonies .
Explanation II says that for the purpose of this section , it is immaterial
whether or not any fees are attached to the office referred to in Explanation I or
whether or not such office is attached to a particular place .
Therefore , it is clear from the Explanation I of section 9 that it will not make
any difference if such right to property or to an office depends entirely on the
decision of questions as to religious rites or ceremonies .

In the case of Vanamalia Ramanuja Jeer Vs. Shri Ranga Ramanuja Jeer ,
Honble Supreme Court of India laid down that the following principles are to

be borne in mind when deciding the question as to whether a right to a

religious office would be a right of a civil nature :i) A declaratory suit simpliciter for religious honour and privileges is not a suit
of a civil nature.
ii) A suit for a declaration and to establish ones right to an office in a temple
and to honours , privileges , remuneration or requisites attached to such an
office , is a suit of civil nature .
iii) In order to mean an office the holder of the office should be under a legal
obligation to discharge the duties attached to the said office and for nonobservance of which penalties can be inflicted on him .
The general rule of law is that when a religious office is situated in a temple ,
shrine , etc. , the right to such office is a right of a civil nature , even though
no fees are attached to it but when such an office is not attached to any place
the right will not be of a civil nature unless a fee is attached to the office .
The caste question is related to social privilege and so it is not a legal right but
when it relates to the property of a caste , the civil court will have jurisdiction
to interfere .The suits for vindication of dignity attached to an office are not
suits of a civil nature . The right to bury a corpse is a civil right , therefore , a
suit to establish such right is a suit of civil nature .
By the words suits expressly barred section 9 of CPC means to say that
there are certain types of suits which are barred by the code itself , such as
i) Section 11 of CPC or resjudicata barred the trial of a suit , in which the
matter or issue of the parties has already been decided by a competent court .
ii) Section 47 barred the determination of all questions relating to execution ,
satisfaction , and discharge of decrees .
iii) Section 10 , Section 95 , Order 2 Rule 2 , Order 9 Rule 9 and Order 22 Rule
11 also barred to file fresh suit .
And by the words Suits impliedly barred section 9 of CPC means to say
that there are certain types of suits which are --i) barred by general principles of law , and
ii) barred on the ground of public policy .
Some statutes also barred the jurisdiction of civil courts and conferred the
jurisdiction on Tribunals.
Suit against intruder :According to the Explanation I of section 9 of CPC a suit in which the right to
property or to an office is contested is a suit of a civil nature . An office may be

either secular or religious . Fees may be or may not be attached to the

religious office. Explanation II to section 9 of CPC says that it is immaterial
whether or not i) any fees are attached to the office , or ii) such office is
attached to any particular place . Therefore a suit , according to the
explanations I and II of section 9 of the CPC , against an intruder for a
declaration that the office of a religious order is vested in the plaintiff is a suit
of civil nature and so such suit lies in the civil court .

Q :- What do you understand by the term decree ? What is

order ? What is the difference between decree and order ?
What are the deemed decrees ?
Answer :Definition of Decree :Section 2 , sub-section 2 , of the Civil Procedure Code defines the term
decree . According to this section decree means the formal expression of an
adjudication which , so far as regards the court expressing it , conclusively
determines the rights of the parties with regard to all or any of the matters in
controversy in the suit and may be either preliminary or final . It shall be
deemed to include the rejection of a plaint and the determination of any
question within section 144 , but shall not include --a) any adjudication from which an appeal lies as an appeal from an order , or
b) any order of dismissal for default .
A decree is preliminary when further proceedings have to be taken before the
suit can be completely disposed of . It is final when such adjudication
completely disposes of the suit . It may be partly preliminary and partly final .
The term decree does not , however include
1) any adjudication from which an appeal lies as an appeal from an order .
2) any order of dismissal for default .
The essential elements of a decree are as follows :1) There must be an adjudication ,i.e., a judicial determination of the matter in
dispute . The administrate decision on any matter is not a decree .
2) The adjudication must have been given in a suit . Suit means a civil
proceeding instituted by the presentation of a plaint .
3) It must have determined the rights of the parties with regard to all or any of
the matters in controversy in the suit .

4) Such a determination must be a conclusive determination . There should be

a conclusive decision and not merely an interlocutory order .
5) There must be a formal expression of the adjudication .
Definition of Order :The term Order has been defined by section 2 , sub-section 14 , of the Civil
Procedure Code as the formal expression of any decision of a Civil Court
which is not a decree .
Orders are of two kinds , appealable orders and non-appealable orders .
The essential ingredients of an order are as follows :1) It should be as the formal expression of any decision .
2) The decision should be pronounced by the Civil Court .
3) The formal expression should not be a decree .
Distinction between Decree and Order :The essence of the distinction between decree and order lies in the nature of
the decision rather than manner of its expression . The main distinctions
between the two are as follows :1) A decree can only originate from a suit commenced by presenting a plaint .
But an order may originate from a suit , it generally arises from a proceeding
commenced on an application .
2) A decree is an adjudication which conclusively determines the rights of the
parties with regard to any or all matters in controversy . On the other hand , an
order may or may not finally determine the rights of the parties .
3) A decree may be preliminary or final but there is no such distinction in
order.
4) Except in certain suits where two decrees , one preliminary and the other
final , are passed , in every suit , there is only one decree . On the other hand
many orders can be passed in a single suit .
5) A first appeal always lies from a decree , unless otherwise expressly
provided by section 96 of C.P.C . Appealability is the rule and non
appealability is the exception in the case of a decree . However , no appeal lies
from an order , unless it is one of the appealable orders according to section
104 or Or. 43 of C.P.C .
6) In case of decree , an aggrieved party , has the right to second appeal on the
grounds mentioned in section 100 of C.P.C . But in case of appealable order an
aggrieved party does not have the right to second appeal.

What are deemed decrees ?

According to the definition , the term decree shall be deemed to include the
rejection of a plaint and the determination of any question within section 144.
So when decrees are drawn up after passing of the
i) order of rejection of plaint and
ii) order determining any question within section 144 ,
those decrees are called deemed decrees .

Q :- Under what conditions a civil court will stay the trial of a

suit ? State in brief objects and conditions for applicability of
section 10 of CPC .
Answer :The doctrine of res-subjudice aims to prevent courts of concurrent jurisdiction
from simultaneously entertaining and adjudicating upon two parallel litigations
with respect to the same cause of action , same subject matter and same relief
claimed. This doctrine of res-subjudice is embodied in section 10 of the Civil
Procedure Code .
Section 10 of CPC lays down that no court shall proceed with the trial of any
suit in which the matter in issue is also directly and substantially in issue in a
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 the same or any other court in India having jurisdiction to grant
the relief claimed , or in any court beyond the limits of India established or
continued by the Central Government and having like jurisdiction or before the
Supreme Court of India.
Explanation to section 10 provides that the pendency of a suit in a foreign
Court does not preclude the courts in India from trying a suit founded on the
same cause of action .
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 , same subject matter and same relief
claimed . What is contemplated by section 10 is that institution of the second
suit is not barred , only the trial thereof shall not be proceeded . Section 10

authorises a civil court to stay the subsequent suit and not to dismiss it .
Policy of the law is to keep the plaintiff confined in one suit or litigation . This
obviates multiplicity of suits as well as the possibility of contradictory verdicts
by two or more courts with respect to the same cause action .
To attract the provisions of section 10 the following conditions must remain
present ----1) There must be two suits , one instituted previously and the other
subsequently .
2) The matter in issue in the subsequent suit must be directly and substantially
the same as like that of the previous suit .
3) The suits must be between the same parties or their successors or
representatives in interest .
4) The previously instituted suit must be pending in the same court or in any
other court in India or in any court beyond the limits of India established or
continued by the Central Government or before the Supreme Court .
5) The court in which the previous suit is instituted should be competent to
grant relief in that suit as well as in the subsequent suit .
6) The parties must be litigating in both the suits under the same title .
When the above conditions are fulfilled the court shall not proceed with the
subsequent suit . This provision is mandatory and not discretionary as the
word used in the section 10 is shall and not may . The order of stay u/s 10
of CPC can be passed at any stage of the suit .

Q :- What is resjudicata ? Enumerate the conditions which

must be satisfied in order to constitute a matter resjudicata .
Answer :What is resjudicata ?

The maxim nemo debet bis vexari pro una at eadem causa means no one
should be vexed twice for the same cause . This maxim is popularly known as

the doctrine of resjudicata . Doctrine of resjudicata , which is a latin term , is

embodied in section 11 of the Civil procedure Code aiming at finality to
litigation.
This doctrine was recognized much earlier in the Hindu Jurisprudence as
prang nyaya in the Brihaspati Smriti by providing that if a person who has
been defeated in a suit according to law , files his plaint once again , he must
be told that he has been defeated already .
The rule intended to prevent new investigation as well as harassment of a
person again and again in various litigations on the same cause . It is based
on the two grounds , 1) public policy and 2) hardship to an individual . The
principle of resjudicata does not oust jurisdiction or cognizability of Civil
Court but it bars retrial and decision once again on the matter what is
concluded . The doctrine is founded on justice , equity and good conscience .
Section 11 of CPC provides that no Court shall try any suit or issue, in which
the matter directly and substantially in issue , has been directly and
substantially in issue in a former suit between the same parties ,or between
the parties under whom they or any of them claim litigating , under the same
title , in a Court competent to try such subsequent suit , or the suit in which
the issue has been subsequently raised , and has been heard and finally
decided by such Court .
Section 11 also contains eight explanations to clarify the principle of
resjudicata .
Conditions to constitute resjudicata :The following five conditions must remain present to constitute a matter
resjudicata :1) Identity of matter in issue =The matter directly and substantially in issue in
the subsequent suit must be the same matter which was directly and
substantially in issue , either actually or constructively , in the former suit .
The explanation iv of section 11 provides that any matter which might and
ought to have been made a ground of defence or attack in such former suit is
to be deemed to have been a matter directly and substantially in issue in such
suit .

2) Identity of Parties = The former suit must have been between the same
parties or between the parties under whom the parties of subsequent suit or
any of them claim . Explanation vi clarifies by providing that where persons
litigate bonafide in respect of a public right or of a private right claimed in
common for themselves and others , all persons interested in such right are ,
for the purposes of this section , to be deemed to claim under the persons so
litigating.
3) Same title = In the former suit , the parties must have litigated under the
same title as like that of the subsequent suit .
4) Concurrence of Jurisdiction = The Court which have decided the former suit
must have been a Court which is competent to try the subsequent suit .
Explanation 2 also clarifies the matter by laying down that for the purpose of
this section , the competence of a Court is to be determined irrespective of any
provisions as to a right of appeal from the decision of such court .
5) Final decision = The matter which is directly and substantially in issue in
the subsequent suit must have been heard and finally decided by the Court in
the former suit . Explanation v also says that any relief claimed in the plaint ,
which is not expressly granted by the decree , is , for the purposes of this
section , to be deemed to have been refused .

Q:- What is constructive resjudicata ? When can a matter be

a resjudicata in between the co-defendants ?
Answer :The doctrine of resjudicata lays down that no Court shall try any suit or issue,
in which the matter is directly and substantially in issue , has been finally
decided by a competent Court in a former suit between the same parties
litigating under the same title . Resjudicata deals with the matter which is
directly and substantially in issue . But circumstances may arise when the
matter is constructively in issue . It may happen that in the former suit the
plaintiff or defendant could take a ground of attack or defence but did not do it
and being failed in the former suit they again come with a new ground of
attack or defence . This taking of new ground of attack or defence ,
subsequently , is barred by constructive resjudicata , on the ground that he
ought to have taken this ground of defence or attack in the former suit . The
constructive resjudicata deems , in that event , that the matter was directly and

substantially in issue in the former suit. The scope of constructive

resjudicata , therefore , is more wide that resjudicata .
Explanation iv to section 11 of CPC provides the doctrine of constructive
resjudicata.
It says that any matter which might and ought to have been made a ground of
defence or attack in such former suit is to be deemed to have been a matter
directly and substantially in issue in such suit .
Let us suppose that A filed a suit against B , praying for a declaration of his
title upon a land , on the ground that he is co-owner . The competent court
having jurisdiction decided the suit negatively and dismissed the prayer of
declaration of title of A over the land . Subsequently , A again files a suit ,
against B , praying for a declaration of his title upon the same land , on the
ground of adverse possession . The subsequent suit is barred by the principle
of constructive resjudicata . The doctrine of constructive resjudicata , here
deems , that the matter of adverse possession was directly and substantially
in issue in the former suit .
Resjudicata in between co-defendants.
Like resjudicata between the plaintiff and defendant , a matter may be
resjudicata in between the co-defendants . Three conditions are essential for a
matter to be resjudicata between the co-defendants . These three conditions
are as follows :1) There must be a conflict of interest between the co-defendants in the former
suit.
2) It must be necessary that the Court decided that conflict in order to give an
appropriate relief to the plaintiff which the plaintiff claimed in the former suit .
3) The conflict between the defendants must have been finally decided by a
Court of competent jurisdiction.
Where all these conditions are present , the decision of former suit operates as
resjudicata in the subsequent suit against the co-defendants .

Q :- What do you mean by the term pleadings ? What are the

general rules as to pleadings ?
Answer :-

Definition of pleadings :Order 6 , Rule 1 , of the C.P.C defines pleading to mean a plaint or a written
statement .
Plaint is the statement of claim, in writing and filed by the plaintiff , in which he
sets out his cause of action with all necessary particulars . Written statement is
the statement of the defendant , in writing and filed by the defendant , in which
he deals with every material facts alleged by the plaintiff in plaint and also states
any new fact which may be in his favour adding such legal objections as he
wishes . A plaintiffs pleading may also be his written statement , as where the
defendant , in his written statement , pleads a set off or a counter claim . In such
a case , the plaintiff has to file his written statement in answer thereto . Thus , an
application to sue as pauper is not a pleading , in as much as it becomes a plaint
only after the application is granted .

General rules as to pleadings :The following are the rules which have to be borne in mind while drafting
pleadings :1) Pleading must state the facts and not law.
2) It must state only material facts on which the party relies for his claim or
defense.
3) The facts must be in the form of a concise statement but in aiming conciseness
precision should not be sacrificed. The pleadings when necessary, shall be
divided into paragraph numbered consecutively. Dates, sums any figures shall be
expressed in figures.
4) Pleading must contain only the facts on which the party pleading relies for his
claim or defence, and not evidence by which the party relies for his claim or
defense.which they are to be proved.
5) Performance of condition precedent being implied, it need not be alleged. The
opponent must specify the conditions, the performance or occurrence of which he
intends to contest.
6) Where the contents of any document are material, it shall be sufficient in any
pleading to state the effect thereof as briefly as possible, without setting out the

whole or any part thereof, unless the precise words of the document or any part
thereof, are material.
7) Allegations in anticipation of the opponents answer should not be made. The
pleading should be confined to what is material at present stage of the suit.
8) Facts necessary for the enforcement of a legal right or duty must be mentioned.
Thus, in a suit for breach of contract on account of the negligence of the
defendant, it has to be stated specially what kind of duty the defendant owed to
the plaintiff and how was he negligent.
9) Legal pleas such as estoppels, limitation and res-judicata may be pleaded.
10) In cases where the party pleading relies on any misrepresentation ,fraud,
breach of trust willful default or undue influence, particulars shall be stated in the
plaint.
11) Facts which the law presumes need not be pleaded.
12) The party should not plead conclusions of law. The pious obligation of a Hindu
son to pay his fathers debts need not to be pleaded. But foreign law and certain
customs and usages are not judicially taken notice of by court and must be
pleaded as facts.