RES JUDICATA

(Term paper towards partial fulfillment of the assessment in the subject of Jurisprudence)

Submitted By: Submitted To:

Samvid Shetty Mr. Deepankar Sharma
B.P.Sc. LLB.(Hons.) Faculty of Law
Semester – III Code of Civil Procedure
Roll No. 1238

NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SESSION
(JULY-NOVEMBER 2015)
 TABLE OF CONTENTS

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 ACKNOWLEDGEMENTS

On the completion of this project I find that there are many persons to whom I
would like to express my gratitude, since without their help and co-operation
the success of this educative endeavour would not have been possible.

I welcome this opportunity to express my sincere gratitude to my teacher and

guide, Mr. Deepankar Sharma, Faculty of Code of Civil Procedure, who has been
a constant source of encouragement and guidance throughout the course of
this work.

I am grateful to the IT Staff for providing all necessary facilities for carrying out
this work. Thanks are also due to all members of the Library staff for their help
and assistance at all times.

I am also grateful to all my friends and colleagues for being helpful in their
differences and for their constant support.

I express my deepest gratitude to my parents Mrs. Varsha Shetty and Mr. Sunil
Shetty, who have been the real driving force for this work.

Samvid Shetty.

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 INTRODUCTION

Section 10 and 11 of the Civil Procedure Code, 1908 deals with the doctrine of res sub-judice
and res judicata. Res sub-judice means any case under trial in the court and res judicata
means any matter which is already settled by the court.

India, has adopted the principle of res judicata in S.11 of the Code of Civil Procedure, 1908

(hereinafter referred to as “C.P.C.”)1.

Res' in Latin means thing 'Judicata' means already decided2. 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 decision3.

It is a principle of law by which a matter which has been litigated cannot be re-litigated

between the same parties. This is known as the rule of "res judicata" (thing decided)4. 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 word “Res” came from a Latin word which means Subject or fact, and “Sub-judice”
means under consideration or under trial. So, Res Sub-judice means any fact under trial in the
court.

The concept of res sub-judice is applicable for only the cases under trial in the court. There is
nothing mentioned in the Civil Procedure Code,1908 specifically in respect of Res sub-
judice. But in section 10 of the Code there is a concept named stay of suits which is nothing
but the English term of the concept “res sub-judice”.

1
C.K Takwani, “Code of Civil Procedure”, 7th ed. Pg 2.
2
Black’s Law Dictionary, 9th ed.
3
Supra at 1, Pg 9.
4
http://www.legalservicesindia.com/article/article/res-judicata-a-brief-study, last visited on 4th September 2015.

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 RES JUDICATA

The essence of the doctrine of res judicata is the judicially formulated proposition that a

matter which has been adjudicated in a prior action cannot be litigated a second time. The

policies which res judicata is designed to serve include the public interest in decreasing

litigation, protection of the individual from the harassment of having to litigate the same

cause of action or issue against the same adversary or his privy more than once, and

facilitation of reliance on judgments5. Essentially, the doctrine of res judicata in general is

based on the three following maxims 6 : ‘nemo debet lis vexari pro una et eadem casua’

meaning that no man should be vexed twice for the same cause, ‘interest republicae ut sit

finis litium’ or that it is in the interest of the State that there should be an end to litigation,

‘andres judicata pro veritate occipitur’ meaning that a judicial decision must be accepted as

correct.

The principle itself is founded upon the principles of justice equity and good conscience, and

applies to various civil suits, criminal proceedings, writs, execution proceedings etc 7. The

underlying purpose for this judicially created doctrine was to instill finality into litigation and

to provide for sound economic use of judicial resources8.

5
Mulla, “Code of Civil Procedure”, 15th ed. 2012 pg 4.
6
http://www.legalblog.in/2011/02/res-judicata-law, last visited on 4th September 2015.
7
Supra at 7, pg 5.
8
http://legalperspectives.blogspot.in/2010/03/constructive-res-judicata-law-revisited, last visited on 4th
September 2015.

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 ESSENTIALS FOR RES JUDICATA

The general principle of res judicata is embodied in its different forms in three different

Indian major statutes—Section 11 of the Code of Civil Procedure, Section 300 of the Code

of Criminal Procedure, 1973 and Sections 40 to 43 of the Indian Evidence Act, yet it is

not exhaustive. Here, we are concerned only with Section 11 of the Code of Civil

Procedure. Following conditions must be proved for giving effect to the principles of res

judicata under Section 119—

A. That the parties are same or litigating under same title,

B. That the matter directly and substantially in issue in the subsequent suit must be same

which was directly and substantially in issue in the former suit,

C. That the matter in issue has been finally decided earlier.

D. That the matter in issue was decided by a Court of competent jurisdiction10.

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 necessary11.

9
Sheodansingh v. Daryao Kunwar, AIR 1966 SC 1332.
10
Ibid.
11
http://www.lawteacher.net/free-law-essays/constitutional-law/res-judicata-and-code-of-civil-procedure-
constitutional-law-essay.php, last visited on 4th September 2015.

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 APPLICATION OF RES JUDICATA

The 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, industrial adjudication, writ petitions, administrative orders,

interims orders, criminal proceedings, etc12. Following cases illustrates the applicability of res

judicata:

Res Judicata in Execution Proceedings:

Explanation VII13 added in the section 11 has made it clear that not only general principle of

Res Judicata but also constructive Res Judicata apply to execution proceedings. The

provisions of the section are now applicable to a proceeding for the execution of a decree,

and references in the section to a suit, issue or former suit shall be construed as references

respectively to a proceeding for the execution of a decree, question arising in such proceeding

and a former proceeding for the execution of that decree. However, an application by decree-

holder to transfer certain papers to another Court for further execution is not an execution

application and its dismissal does not bar a fresh application. The Law Commission

suggested that the rule of Res Judicata ought to be connected to the circumstances of

processes in execution and autonomous incidents and prescribed insertion of Section 11a. As

opposed to embeddings Section 11a the Joint Committee of Parliament prescribed insertion

of Explanation to Section 11 and on the foundation of that report, Explanations VII and VIII

have been embedded by C.P.C. (Revision) Act, 1976. Segment 11of the present Code

rejecting Explanation VIII imagines that judgment in a previous suit might work as Res

Judicata if the Court which chose the suit was skilled to attempt the same by goodness of its

12
Supra at 1, pg 70.
13
Explanation VII, Code of Civil Procedure, 1908.

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monetary purview and the topic to attempt the consequent suit all things considered it is not

vital that the said Court may as well have had regional ward to choose the resulting suit14.

Constructive Res Judicata:

Explanation IV to Section 11 says that any matter which might or ought to have been made a

ground of defence or attack in the former suit shall be deemed to have been a matter

constructively in issue in that suit. Thus, if a matter which might and ought to have been

raised by the plaintiff in the former suit is not raised by him there he would be estopped from

raising the same question in a subsequent suit between the same parties. Similarly, where a

defendant did not raise all the objections which he might and ought to have raised in the

former litigation in controverting the plaintiffs claim, he will be barred from raising them in a

subsequent suit between the same parties. Where a matter has been actually in issue in a

former suit between the same parties, litigating under the same title, in a court competent to

try such subsequent suit, it must have been heard and decided for the purpose of constituting

res judicata but where a matter has been constructively in issue it could not from the very

nature of things be heard and decided. Nevertheless it will be deemed to have been heard and

decided against the party omitting to allege it, provided the conditions of res judicata are

complied with.

Writ Petitions and Res Judicata

In M.S.M sharma V. Dr. Shree Krishna15, , for the first time Supreme Court held that the

general principle of res judicata applies even to writ petition filed under Article 32 of the

Constitution of India. Thus, once the petition filed under Article 32 is dismissed by the court,

subsequent petition is barred.

14
http://www.jiarm.com/April2014/paper12252, last viewed on 4th September 2015.
15
M.S.M sharma V. Dr. Shree Krishna AIR 1960 SC 1186.

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Similarly a writ petition filed by a party under Article 226 is considered on merit as a

contested matter and is dismissed, the decision thus pronounced would continue to bind

unless it is otherwise modified or reversed in appeal or in other appropriate proceedings

permissible under the Constitution.

In the leading case of Daryao V. State of U.P16., the Supreme Court has placed the doctrine of

res Judicata on a higher footing, considering and treating the binding character of the

judgments pronounced by competent courts as an essential part of the rule of law.

Applicability of Constructive res Judicata in Writ Petition

The question arose for the first time before the Supreme Court in Amalgamated Coalfields

Ltd. V. Janapada Sabha17, , whether the concept of constructive res judicata can be applied in

writ petition or not. In Devilal Modi V. STO18, Supreme Court clarified the stand and said the

principle of constructive res judicata also applies in writ petition. A direct question, however

arose before the Supreme Court in State of U.P. V. Nawab Hussain19, , the Court held that

principle of constructive res judicata is applicable.

It should be noted that the principle of res judicata and constructive res judicata are held not

applicable in Habeas Corpus Petition by Supreme Court in Ghulam Sarwar V. Union of

India20, and in Lallubhai V. Union of India21, respectively22.

16
Daryao V. State of U.P AIR 1961 SC 1457.
17
Amalgamated Coalfields Ltd. V. Janapada Sabha AIR 1964 SC 1013.
18
Devilal Modi V. STO AIR 1965 SC 1153.
19
State of U.P. V. Nawab Hussain AIR 1977 SC 1680.
20
Ghulam Sarwar V. Union of India AIR 1967 SC 1335.
21
Lallubhai V. Union of India AIR 1981 SC 728.
22
http://www.legalservicesindia.com/article/article/res-sub-judice-res-judicata-and-constructive-res-judicata,
last visited in 4th September 2015.

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 RES JUDICATA: DIFFERENCE FROM OTHER DOCTRINES

Res judicata and Res Sub Judice

1. Res judicata relates to a matter already decided, i.e. a matter on which judgment has

been pronounced, whereas res. Subjudice (laid down in Section 10) relates to matter

which is pending for judicial enquiry.

2. Res subjudice bars the trial of a suit in which the matter directly and substantially in

issue is pending judicial decision, in a previously instituted suit by staying the trial of

the latter suit, whereas res judicata bars altogether the trial of a suit or an issue in

which the matter directly and substantially in issue has already been adjudicated upon

in a previous suit.

3. The object of res subjudice is to prevent Courts of a concurrent jurisdiction from

simultaneously entertaining and adjudicating upon two parallel litigations in: elute

causeof action, same subject-matter and same relief whereas the object of Res judicata

is that there should be an end to litigation and that no man should be vexed twice over

for the same cause23.

23
Supra at 1, pg 75.

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 Res Sub-judice

The word “Res” came from a Latin word which means Subject or fact, and “Sub-judice”
means under consideration or under trial. So, Res Sub-judice means any fact under trial in the
court.

The concept of res sub-judice is applicable for only the cases under trial in the court.
There is nothing mentioned in the Civil Procedure Code,1908 specifically in respect of Res
sub-judice. But in section 10 of the Code there is a concept named stay of suits which is
nothing but the English term of the concept “res sub-judice”.

Essentials For Res Sub-judice

According to section 10 of the Code of Civil Procedure, 1908 to apply the doctrine of res sub-
judice to stay a suit the following conditions must be fulfilled –

(1) There must be two suits to apply the doctrine of res sub-judice and one of them
must be pre filed and another one must be later filed suit. [ Anna malay v. Tharand
]
(2) The parties of every suit or their representatives must be same. [ Bal Ram Singh v.
Taj Ram Singh ]
(3) The subject matter of the suits must be same directly or indirectly. [ Indian Bank
v. Maharastra State Cooperative Banking ]
(4) The cause of action to the suit must be same in both cases. [ Abdul Latif v. Abdul
Haque ]
(5) Both suits must be under trial, it means none of the suits had gone to the final
judgment. [ Indian Bank v. Maharastra State corporation ]
(6) The court where the first suit was filed must have the jurisdiction to have it. [
Minusar v. Hema ]
(7) The court where the first suit was filed must have the jurisdiction to give the
remedy of the suit. [ Laksmi Dashi v. Ram Dash ]
(8) The court where the suits will be filed must be in control of the Government of
Bangladesh.

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 Objectives of Res Sub-judice

It’s against natural justice to let multiple cases with same parties, subject matter and same
cause of action to run at the same time in different compatible Courts. Cause if there are
multiple parallel cases with same subject matter and cause of action then there will be dispute
among judgments. The main object of res sub-judice is to prevent this kind of disputes.
Another object of res sub-judice is to reduce the excess of the suits.

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 CONCLUSION

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 extent have widened with the

passage of time and the Supreme Court has elongated the areas with its judgments. Some

problems still persist but the courts and legislature are trying to deal with these problems.

The doctrine of res sub-judice prevents the courts to run multiple parallel cases with same

parties, subject matter and cause of action in multiple competent courts. By this rule stated in

section 10 of the Civil Procedure Code,1908 no one can file a suit in a court which is already

under trial in another court. By this rule the multiplicity of suites can be prevented and the

courts can give remedy faster. And this remedy can only be given by following the conditions

given in section 10.

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 BIBLIOGRAPHY

Cases

Amalgamated Coalfields Ltd. V. Janapada Sabha AIR 1964 SC 1013 .................................................. 7

Daryao V. State of U.P AIR 1961 SC 1457 ............................................................................................ 7
Devilal Modi V. STO AIR 1965 SC 1153. .............................................................................................. 7
G.N.Nayak v. Goa University, AIR 2002 SC 790. .................................................................................. 8
Ghulam Sarwar V. Union of India AIR 1967 SC 1335. ......................................................................... 7
K.Ethirajan v. Lakshmi, AIR 2003 SC 4295........................................................................................... 8
Lallubhai V. Union of India AIR 1981 SC 728. ..................................................................................... 7
M.S.M sharma V. Dr. Shree Krishna AIR 1960 SC 1186...................................................................... 6
Sheodansingh v. Daryao Kunwar, AIR 1966 SC 1332........................................................................... 4
Sita Ram v. Amir Begum (1886) 8 ALL 324 ......................................................................................... 11
State of U.P. V. Nawab Hussain AIR 1977 SC 1680.............................................................................. 7

Statutes

Explanation VII, Code of Civil Procedure, 1908. ................................................................................... 5

Treatises

Black’s Law Dictionary, 9th ed................................................................................................................ 1

C.K Takwani, “Code of Civil Procedure”, 7th ed. .................................................................................. 1
Mulla, “Code of Civil Procedure”, 15th ed. 2012.................................................................................... 3

Web Links

http://legalperspectives.blogspot.in/2010/03/constructive-res-judicata-law-revisited ............................ 3
http://studentlawnotes.blogspot.in/2012/12/res-judicata......................................................................... 2

Articles

http://www.jiarm.com/April2014/paper12252........................................................................................ 6
http://www.legalservicesindia.com/article/article/res-judicata-a-brief-study ......................................... 1
http://www.legalservicesindia.com/article/article/res-sub-judice-res-judicata-and-constructive-res-
judicata ................................................................................................................................................ 7

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