Nature, Scope and Objective Res sub judice -The principle of res sub-judice prevents the

court from proceeding with the trial of any suit in which the matter in issue is directly or
substantially the same with the previously instituted suit between the same parties and the
court where the issue is previously instituted is pending has the power to grant the relief
sought. This rule is applicable to the trial of the suit and not the institution. It does not restrict
the court from passing interim orders like injunction or stay. However, it applies to revisions
and appeals. The purpose behind this rule is to prevent multiplicity of cases in courts. It is
also sought to prevent the plaintiff from getting two separate decisions from different courts
in his favour or two contradictory judgements. It also ensures to protect the litigant from
unnecessary harassment. The policy of law is to restrict the plaintiff to one legislation, thus
obviating the possibility of two conflicting verdicts by one and the same court in respect of
the same relief.

Conditions - Section 10 of the Civil Procedural Code, 1908 deals with the conditions
required to apply the principle of res sub judice. The conditions in the process of application
of res sub-judice are:

Where the matter in issue is same- Section 10 clearly states that the matter in issue in both
the suits must be directly or substantially be the same.In other words there must be two suits
one that is previously instituted and another that is subsequently substituted. The issues of
both the suits should be the same to get the benefit of this principle, it is not sufficient if only
one or two issues are common. In the circumstances where the entire issues are not the same,
the court may exercise its power under Section 151 and stay the trial in a subsequent suit or
the trial of the suit may be consolidated. The power of courts to stay the trial under Section
151 is discretionary in nature and can be exercised only when there is an abuse of process of
court and if it defeats the ends of justice.

 Where the parties in suits are same- The two suits should have the same parties or their
representatives.
 Where the title of the suit is same- The title of both the suits for which the parties are
litigating should also be same.
 Where the suit must be pending- The former suit must be pending in the court while the
latter suit is instituted. The word pending is for the previously instituted suit, where the
final decision has not been arrived at.
 In a competent court- Section 10 also specifies that the former suit must be pending
before a court which is competent to carry out the trial. If the former suit is pending
before an incompetent court, no legal effects can flow from it.

Example- ‘P’ was an agent in Patna who agreed to sell goods in Odisha to ‘M’. ‘P’ the agent
then filed a suit for balance of accounts in Patna. ‘M’ sues the agent ‘P’ for accounts and his
negligence in Odisha; while the case was pending in Patna. In this case, Patna court is
precluded from conducting trial and can petition Odisha Court to direct a stay of proceedings
in Patna Court.

Doctrine of restitution- The doctrine of restitution implies to brings the aggrieved party to
the original position where the benefit of the erroneous judgment of the court is received by
the other party who was not entitled to such benefit. Restitution is not a new concept and
Section 144 merely gives statutory recognition to this principle. Section 144 of CPC deals
with the application for restitution.

Section 144 states that:

 When a decree or order of the Court has been:

 varied/reversed in any appeal, revision or other proceedings;
 is set aside/ modified in any suit instituted for that purpose.

The Supreme Court in the case of Lal Bhagwant Singh vs Rai Sahib Lala Sri Kishen Das
held that the party who received the benefit of the erroneous judgment is by law under an
obligation to make restitution to the other party for his loss.

Actus curiae neminem gravabit- The Latin maxim actus curiae neminem gravabit
means the act of court should not affect anyone and is founded upon the principle of
equity. The Court is obliged to ensure that no one is endured by its order and it should not
pass any order to the prejudice of any person. The apex court reiterated the maxim of
actus curiae neminem gravabit in the case of Odisha Forest Development Corporation v.
M/s Anupam Traders.
Res Judicata meaning-Res means “subject matter” and judicata means “adjudged” or
decided and together it means “a matter adjudged”. In simpler words, the thing has been
judged by the court, the issue before a court has already been decided by another court and
between the same parties. Hence, the court will dismiss the case as it has been decided by
another court. Res judicata applies to both civil and criminal legal systems. No suit which has
been directly or indirectly tried in a former suit can be tried again.

Res Judicata example- ‘A’ sued ‘B’ as he didn’t pay rent. ‘B’ pleaded for the lessening of
rent on the ground as the area of the land was less than the mentioned on the lease. The Court
found that the area was greater than shown in the lease. The area was excess and the
principles of res judicata will not be applied.

Nature and Scope of Res Judicata-Res judicata includes two concepts of claim preclusion
and issue preclusion. Issue preclusion is also known as collateral estoppel. Parties cannot sue
each other again after the final judgment on the basis of merits has reached in civil litigation.
For example, if a plaintiff wins or loses a case against the defendant in the case say A, he
cannot probably sue the defendant again in case B based on the same facts and events. Not
even in a different court with the same facts and events. Whereas in issue preclusion it
prohibits the relitigation of issues of law that have already been determined by the judge as
part of an earlier case.

The scope has been decided in the case of Gulam Abbas v. State of Uttar Pradesh. In this case
the court incorporated the rules as evidence as a plea of an issue already tried in an earlier
case. Judgment of this case was difficult as the judges should apply res judicata. It was
decided that res judicata is not exhaustive and even if the matter is not directly covered under
the provisions of the section it will be considered as a case of res judicata on general
principles.

Doctrine of Res Judicata- The double jeopardy provision of the Fifth Amendment to the
U.S. Constitution protects people from being put on a second trial after the case has been
judged. So the doctrine of res judicata addresses this issue and it bars any party to retry a
judgment once it has been decided.

Section 11 of the Civil Procedure Court incorporates the doctrine of res judicata also
known as “ rule of conclusiveness of judgment”. The doctrine of res judicata has been
explained in the case of Satyadhyan Ghosal v. Deorjin Debi. The judgment of the court was
delivered by Das Gupta, J. An appeal was made by landlords who attained a decree for
ejectment against the tenants who were Deorajin Debi and her minor son. However, they
have not been yet able to get possession in execution soon after the decree was made. An
application was made by the tenant under Section 28 of the Calcutta Thika Tenancy Act and
alleged that they were the Thika tenants. This application was resisted by the landlords saying
they were not Thika Tenants within the meaning of the Act.

The tenants moved to the High Court of Calcutta under the Civil Procedure Code. The court
applied the principle of res judicata to achieve the finality in litigation. The result came that
the original court, as well as the higher court, can proceed for any future litigation on the
basis that the previous decision was correct.

The doctrine of res judicata says –

 That no person should be disputed twice for the same reason.

 It is the State that decides there should be an end to a litigation
 A judicial decision must be accepted as the correct decision.

Devilal Modi vs. Sales Tax Officer- In the leading case of Devilal Modi vs. STO, B
challenged the validity of an order of assessment under Article 226. The petition was
dismissed on the basis of merits. The Supreme Court also dismissed the appeal that was made
against the order on the basis of merits. B again filed another writ petition in the same High
Court against the same order of assessment. This time the petition was dismissed by the High
Court. The Supreme Court held that the petition was barred by the principle of res judicata.

Avtar Singh v. Jagjit Singh- A peculiar problem arose in the case of Avtar Singh v. Jagjit
Singh. A filed a civil suit, a contention regarding the arbitration of the Court was taken by B.
The objection was sustained and the plaint was returned to the plaintiff for the presentation.
The Revenue Court did not have any jurisdiction when A approached the Revenue Court so
he returned the petition. Once again A filed a suit in the Civil Court. B contended that the suit
was barred by the doctrine of res judicata.
Foreign Court, Foreign Judgement (Sec. 13)- The Indian Code of Civil Procedure, 1908
(CPC) lays down the procedure for enforcement of foreign judgments and decrees in India.
CPC, 1908 had defined the following as-

Section 2(5) “foreign Court” means a Court situated outside India and not established or
continued by the authority of the Central Government.

Section 2(6) “foreign judgment” means the judgment of a foreign Court.

Nature and Scope of Foreign Judgments- Section 13 embodies the principle of res judicata
in foreign judgments. It embodies the principle of Private International law that a judgment
delivered by a foreign court of competent jurisdiction can be executed and enforced in India.

Foreign Judgements- Section- 13 provides that foreign judgements may operate as res
judicata except in following six cases:-

 Where the decision is not given by the competent court.

 Where the decision has not been given on the merits of the case.
 Where the judgement is found to be incorrect with the view of international law.
 Where the judgement opposed to the doctrine of natural justice.
 Where the decision has been obtained by fraud
 Where the judgement found to be on breach of law enforced in India.

Plaint- A Plaint is a legal document that contains the content of any civil suit which shows
the Plaintiff’s claim after filing suit. The plaintiff is the first step of the Plaintiff in the form
of a legal document for the commencement of suit and it shows what a Plaintiff wants from
that suit. The concept of a plaintiff is mentioned in the Civil Procedure Code. Through the
help of the plaintiff, the plaintiff narrates or describes the cause of action and related
information which is considered as essential from the viewpoint of the suit.

In the case of the plaintiff, the cause of action consists of two divisions, first is the legal
theory (the factual situation based on which the plaintiff claims to have suffered) and second
is the legal remedy that the plaintiff seeks from the court. A plaint is considered an important
concept because it is the foremost and initial stage to initiate any lawsuit and helps to find a
civil court of appropriate jurisdiction.

Order VII of the Code of Civil Procedure deals, particularly with plaint. In Order VII of CPC,
there are many different rules which deal with different constituents of plaint. Rules 1 to 8
deal with the particulars of the plaint. Rule 9 of CPC deals with how the plaint will be
admitted and after that Rule 10 to 10-B talks about the return of the plaint and the appearance
of parties. And the main Rules i.e 11 to 13 deal with the rejection of the plaint and in which
circumstances the plaint can be rejected.

Section 26 of the Code of Civil Procedure states “Every suit shall be instituted by the
presentation of a plaint or in such other manner as may be prescribed.” This section clearly
shows that plaint is very much necessary for the establishment of a suit before the civil or
commercial court.

Necessary Contents of A Plaint- A plaint is a legal document that contains a lot of necessary
contents in the absence of which, it cannot be considered as a plaint. The contents necessary
for a plaint are mentioned in Rules 1 to 8 of Order VII of CPC. These are mentioned below:

 Plaint should contain the name of the commercial or civil court where a suit will be
initiated.
 Plaint should contain details of the plaintiff such as the name, address, and description.
 Plaint should contain the name, residence, and description of the defendant.
 When a plaintiff has some defects or problems in health or any type of disability, the
Plaint should contain a statement of these effects.
 Plaint should contain the facts due to which cause of action arises and where the cause of
action arises it should also be mentioned.
 Plaint should not only mention facts due to which cause of action arises but also those
facts which help in recognizing the jurisdiction.
 Plaint should also contain about that relief which the plaintiff seeks from the court.
 When the plaintiff is ready to set off a portion of his claim, the Plaint should contain that
amount which has been so allowed.
 Plaint should contain a statement of the value of the subject-matter of suit not only for the
purpose of jurisdiction but also for the purpose of court-fees.At last, the content that
should be on plaint is the plaintiff verification on oath.

Ex parte Decree and its remedies || Order 9 Rule 13 || CPC || Introduction:- The right to
be heard in a suit is one of the important principles of the natural justice and our Civil
Procedure duly provides for such right to the party. Despite the sufficient opportunity
provided if a defendant absents from the court, when he called upon on the day of hearing
mentioned in the summons duly served on him, the court is empowered to proceed ex parte
and to pass an ex parte decree against such defendant under Order 9, Rule 6 (1) (a). Meaning
of Ex parte decree:- When the suit is called out for hearing and the plaintiff appears and the
defendant does not appear and summons is duly served, the court may proceed ex parte
against him and can pass a decree called ‘ex parte’ decree. Remedies against ex parte
decree:- The defendant, against whom an ex parte has been passed, has the following
remedies namely:-

1. Application to set aside the ex parte decree (Order 9 Rule 13)

2. An appeal against such decree; section 96(2) (or to file a revision under section 115
where no appeal lies;
3. Apply for review under Order 47 Rule 1; or
4. File a suit on the ground of fraud.

Bhanu Kumar Jain V. Archana Kumar, (2005) 1SCC 787 it was held that the above-
mentioned remedies are concurrent and they can be prosecuted simultaneously or
concurrently.

Application under Order 9, Rule 13:- An application under Order 9 Rule 13 of CPC
dealing with setting aside of decree ex parte against the defendant can be entertained only the
following two grounds;

1) Where summons was not duly served

2) Where the defendant was prevented from sufficient cause from appearing where the fact
called for hearing.

However, this rule is available only to the person who is a default of appearance as per Rule 6
of Order 9. Under this rule, only the defendant can avail this remedy not the non-party to the
suit unless if he proves that his interest is affected by such decree. The limitation period for
filing an application for setting aside ex-parte decree is thirty days from the date of the
decree. Where in any suit, an ex parte decree has then it can also be set aside if there is
sufficient reason behind the absence of a party. If the court is satisfied with the reason of
absence then it may set aside an ex parte decree. During all these procedures the court must
keep in mind that nowhere any miscarriage of justice is done while passing an ex-parte
decree.

A representative suit is one that is filed by or against one or more people on behalf of
themselves and others who have a vested interest in the outcome of the suit.------
Representative suit is based on public policy. It saves time, money, labour and prevents
multiplicity of suits. Order 1 Rule 8 of the Civil Procedure Code deals with representative
suits. --- As a general rule, all persons interested in a suit should be joined as parties to
it so that the matter involved therein may be finally adjudicated upon and fresh litigation over
the same matter may be avoided. Rule 8 of Order 1 of the Civil Procedure Code (CPC) is an
exception to this general rule. -----In Diwakar Shrivastava vs the State of Madhya
Pradesh (1984), it was stated: “the rule provides that when there are several persons similarly
interested in a suit, one or more of them can, with the permission of the court or on the
direction from the court sue or be sued on behalf of themselves and others.”-----Order 1 Rule
8 of CPC is an enabling provision and does not compel an individual to represent a body of
person having the same interest if his action is maintainable without joining the rest in the
suit.-----Essential Elements of Representative Suit- For the application of Order 1 Rule 8 of
the Civil Procedure Code following elements must be fulfilled:

1. There Should Be Several Parties- The first condition for a representative suit is several
parties. The word “several parties” imply a group of persons and does not mean innumerable
persons. In Hasanali vs Mansoorali (1947), the Privy Council held that a representative suit
on behalf of inhabitants of a village regarding village property or on behalf of the members of
the sect, caste, the community is maintainable under this rule.

2. They Must Have the Same Interest- Community’s interest is the next essential, and it is
the condition precedent for bringing a representative suit. Hence the interest must be common
to all, or they must have a common grievance they seek to redress. It is not necessary that the
interest must have arisen from the same transaction. The explanation clarifies that the person
need not have the same cause of action.

3. Permission or Direction by the Court Is Necessary- The suit does not become a
representative suit until the court grants the permission or the directions have been given by
the court. The proper course is that the permission of the court must be obtained before the
suit is filled.

4. Notice Must Be Given- All interested persons who would be bound by the decree shall be
given notice. Notice may be in person or public. In Kumaravelu Chettiar vs T.P. Ramaswami
Ayyar (1933), the Privy Council held that the issue of notice is peremptory, and if it is not
given, the decree will bind only those parties who are on record.
ORDER 23- The withdrawal and compromise of a civil suit is provided by Order 23 of the
Code of Civil Procedure, 1908.[1] There are two types of withdrawal provide by it. Those
are:

 Absolute withdrawal: In this form of withdrawal, the leave of the Court is not needed;
and
 Qualified withdrawal: In this the leave of the Court is needed.

1. Withdrawal without the leave of the court-After the institution of a suit, the Plaintiff
may at any point of time withdraw his claim or suit against any one or all the defendants
without the need of taking a leave from the court. This is provide by Rule 1 (1) of Order 23 of
the Code of Civil Procedure, 1908.This right to withdraw a suit against one or all the
defendants is an Absolute right and not a Qualified Right. If the plaintiff does not want to
proceed with its suit, the Court cannot compel the Plaintiff to continue.

2. Withdrawal with leave of court- Rule 1(3) of Order 23 of the Code of Civil Procedure,
1908 allows withdrawal of suit with the leave of the court. If the court feels that the suit is
having some formal defects and it must fails or if the court gets sufficient grounds to allow
the plaintiff to institute a new fresh suit for the whole suit or any one subject matter of the
suit.

The term sufficient grounds should not be construed same as the term formal defect. If there
is an issue where the decree passed by the court cannot be executed because of no one’s fault,
if two suits had been filed for the same cause of action and due to a fault, both the suits were
withdrawn, omission to file the Power of Attorney, etc are some of the examples which falls
under the category of sufficient grounds. The Court also has the power to grant leave. The
grant of leave is done when the parties ask for it or if the court finds sufficient grounds the
court may grant leave sue moto.

3. Suits by minor- If in any suit, the plaintiff is a minor, then, neither the suit, nor any part of
the claim can be withdrawn without the permission of the Court. This has been provided by
the Amendment Act of 1976. According to Sub Rule 2 of Rule 1 of Order 23 of the Code of
Civil Procedure, 1908, if the plaintiff asks for a leave from the Court where the plaintiff is a
minor, then the application must be attached with an affidavit of the next best friend of the
minor. If a pleader is representing the minor in the Court, then the pleader also must submit a
certificate certifying that the need of leave is for the benefit of the minor.
4. Limitation- If the plaintiff withdraws his suit with his own free will, to file a fresh suit,
then the plaintiff needs to file the fresh suit within the limitation period. This is provided
under Rule 2 of Order 23 of the Code of Civil Procedure, 1908.

Adjustment or Compromise of Suit- Even though a suit has been instituted, the parties are
free to settle in a compromise .Rule 3 of Order 23 of the Code of Civil Procedure, 1908 states
that wherever the parties to a suit agrees and comes to a compromise, then the Court should
record such an agreement and also pass a decree for the same. However for a compromise the
following conditions must be met. The conditions are as follows:

 An agreement between the parties or a compromise must be there between the parties.
 The compromise must be in written and signed by the parties.
 The agreement must be lawful.
 The agreement must be recorded by the concerned court; &
 A consent decree must be passed.

If after the passing of the consent decree by the concerned court, a dispute regarding the
genuineness of the compromise comes into question, then the court which had recorded the
compromise and passed the consent decree would have the jurisdiction to hear the matter.
The parties may file an appeal against the decree.However no fresh suit can be filed
concerning the same matter. The Court should see that the compromise in which the parties
had agreed to is lawful and in accordance to the Indian Contract Act, 1872. ----Rules 6 and 7
of Order 32 of the Code of Civil Procedure, 1908 tries to safeguard the rights of minors by
not allowing any best friend or guardian of the minor to come to a compromise without
taking the leave of the Court.

The pleaders or the advocate appearing behalf of the parties has an implied authority where if
the advocate finds that by coming to a compromise, their parties would be benefitted, then the
advocates need not obtain permission to come in a compromise.

When the parties comes to a compromise and the Court also passes a decree for the same,
then the decree is not treated to be a decision of the Court. The Court just provides a seal to
the agreement in which both the parties have entered. However the Court looks into whether
the agreement is legal and has been abided by the Indian Contract Act, 1872. So a
compromise agreement is not treated as res judicata. However many times a compromise
agreement has also been treated as res judicata.
Suits of Civil Nature- Suits of civil nature is a very wide expression and not exhaustive in
any law. However, some light can be casted on this topic based onCPC, 1908. In CPC suits of
civil nature means a suit that is presented before a Civil Court for adjudication of a civil
matter, more specifically to determine the right of property or office. Here in both phrases,
“right to property” and “right to office” deserves more clarification. “Right to property”
means and includes movable, immovable, intellectual, inheritable property and property that
arise out of any contract, agreement, litigation, or out of any other civil rights. As opposed to,
“right to office” means a right to hold a position and exercise the power of that position. It
could be a job post, a religious, or any secular post.

Section 9- Provisions relating to “suits of civil nature” have been laid down in section 9 of
CPC. It reads “Court shall have the jurisdiction to try all suits of civil nature except those of
which their cognizance is expressly or impliedly barred.” In the landmark case, Shankar
Narayan Potti v K Sreedevi, (1998) 3 SCC 751 the apex court held that ”it is obvious that in
all type of civil dispute civil courts have inherited jurisdiction as per section 9 of the CPC
unless a part of Jurisdiction is carved out from such jurisdiction, expressly or by necessary
implication by any statutory provision conferred on any other tribunal or authority.”

Civil Suit examples =Following are the suits of civil nature

1.suit relating to property. 2. suit for damage of civil wrong. 3. suit for Specific Relief. 4. suit
for damage for breach of contract. 5.suit for rent.

But these are not suits of civil nature,

1. A suit for a declaration of a member of caste refrained from invitation to a caste

dinner.

2. A suit for expulsion of a member from caste.

3. Suits involving purely religious ceremonies.

Constructive res judicata?

The doctrine of constructive Res-judicata is provided in the Explanation IV of section 11

which explains that where the parties have had an opportunity of controverting a matter, that
should be taken to be the same thing as if the matter has been actually controverted and
decided. The object of explanation is to compel the plaintiff or the defendant to take all the
grounds of attack or defense which were open to him.
The rule of Constructive res judicata is an artificial form of res judicata, and provides that if a
plea could have been taken by a party in a proceeding between him and his opponent, he
should not be permitted to take that plea against the same party in a subsequent proceeding
with reference to the same subject matter.

Difference between res judicata and constructive res judicata:

The distinction between Res Judicata and Constructive Res Judicata has been carved out in
the case of Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust,
wherein it was observed that Section 11 contemplates actual res judicata while Explanation
IV provides for constructive res judicata. When by any judgement or order any matter in
issue has been directly or explicitly decided, the decision operates as res judicata in a matter
in subsequent suit. It is also true in case of decision of court on an issue in an earlier suit
which is implicit. However, when any matter which might or ought to have been a ground of
attack or defense in the previous suit has not been raised in such suit, then it is deemed that
the matter is constructively in issue and is therefore taken as decided. This is rule of
constructive res judicata.

EX.- RESJUDICATA - A’ sued ‘B’ as he didn’t pay rent. ‘B’ pleaded for the lessening of
rent on the ground as the area of the land was less than the mentioned on the lease. The Court
found that the area was greater than shown in the lease. The area was excess and the
principles of res judicata will not be applied.

EX- constructive - State of U.P. V. Nawab Hussain, AIR 1977 SC 1680 A, a sub-inspector
of police was dismissed from service by D.I.G. He challenged the order of dismissal by filing
a writ petition in the high court on the ground that he was not afforded a reasonable
opportunity of being heard before the passing of the order. The contention was, however,
negatived and the petition was dismissed. He then filed a suit and raised an additional ground
that science he was appointed by the I.G.P., the D.I.G. had no power to dismiss him. The
state contended that the suit was barred by constructive res judicata. The trial court, appellate
court and the high court held that suit was not barred, but the Supreme Court held that the suit
was barred by constructive res judicata as the plea was within the knowledge of the plaintiff
and could well have been taken in the earlier writ petition.