Habib Educational & Welfare Society’s

M. S. College of Law

Academic Year 2021-2022

Department : LLB (3 years )

Name: TAQDIS MOHD SALIM SHAIKH

Subject : CIVIL PROCEDURE CODE
Roll no : 36
Division : A
Professor :MS. JYOOTI SHUKLA
Branch : MUMBRA
Q.01 : Explain in detail What is Res Judicata &
Res Sub judice??

INTRODUCTION:-
In the common law, several principles have been laid down which formed the
foundation of the present legal system in India. The purpose of such doctrines is to
assess the Judicial Efficiency and ensure that the productive pace of getting justice
in the court is achieved and maintained.

The courts take help of several common law and theories to maintain balance and
improve our judiciary system, the main aim of these theories is to access “judicial
efficiency” and to guarantee that a productive pace of justice is attained and
maintained in the courtroom. The Doctrine of Res Sub Judice and Res Judicata are
two of these concepts covered in this article.

Res Judicata is a Latin term that refers to a case that has been decided. The theory
of res judicata prevents or precludes continuing litigation of the same matter
between the same parties when a case has already been resolved and the final
judgement has been rendered such that the matter is no longer subject to appeal.

Res Sub judice is a Latin maxim that translates as "under judgement." The rule of
the sub judice is based on public policy, which forbids the plaintiff from filing two
parallel claims on the same subject matter, limiting the possibilities of two courts
issuing contradicting rulings. The theory of Res Sub judice exists to avoid
duplication of processes and to avoid two contradictory rulings.

The concept of res sub judice is discussed in Section 10 of Civil Procedure Code,
1882, while the concept of res judicata is discussed in Section 11 of CPC. Section -
10 establishes the norm for cases to have stayed while they are being considered or
adjudicated by a court. Section-11, on the other hand, specifies that the rule applies
to a case that has already been decided. It prohibits the trial of a suit or an issue in
which the directly and significantly in question topic has already been decided in
previous litigation.
 Res Judicata

An issue that has been determined cannot be brought up again, either in the same
court or in a different court, under the doctrine of Res Judicata. Because it
prevents or forbids any additional claims after the final decision, it is also known
as "claim preclusion." It's a common-law practice that prevents matters from being
re-litigated in court between the same parties.

In case of Res Judicata, a matter once decided cannot be raised again, either in the
same court or in a different court. This is why it is also called as „claim preclusion‟
as it precludes or prohibits any further claims after the final judgment. It is a
common law practice meant to bar re-litigation of cases between the same parties
in the court.

The doctrine of Res Judicata come from the full maxim „Res judicata pro veritate
accipitur‟. The concept of Res Judicata evolved from the English Common Law
system, and was derived from the overriding concept of judicial economy,
consistency, and finality. From the common law, it got included in the Code of
Civil Procedure, which was later as a whole was adopted by the Indian legal
system.
The goal of Res Judicata is to prevent:

 Injustice to the parties in a dispute that was meant to be resolved by a

decision that provided finality and barred any future claims.
 Court resources are being used unnecessarily.
 Multiplying judgments as additional claims would result in multiple
different decisions on the same issue, causing confusion.
 Obtaining damages twice from the defendant for the same harm.

It should be emphasized, however, that this does not include the appeals procedure,
which is regarded as the proper means to contest a decision. The res judicata
principle will apply to the judgment once the appeal procedure has been exhausted
or is prohibited by limitation. Even in a subsequent stage of the same proceedings,
the theory of res judicata can be utilized. The court decided in the matter of Y.B.
Patil v. Y.L. Patil1that once an order is made during the course of the proceedings,
it becomes final and is therefore binding on the parties at any later stage of the
same proceedings.

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 favor or two contradictory judgment‟s. 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.
Res judicata includes:

 Claim preclusion: it focuses on barring a suit from being brought again on a

legal cause of action, that has already been, finally decided between the
parties.
 Issue preclusion: bars the re-litigation of factual issues that have already
been necessarily determined by a judge as part of earlier claim.

Though it must be noted that, this doesn‟t include the process of appeal, as an
appeal is considered the appropriate way to challenge a judgement. Once the
appeal process is exhausted or barred by limitation, the res judicata will apply to
the decision. Therefore, its application is only on the final decision post appeals.

Res Judicata under Indian law:

Res judicata or the rule of conclusiveness of the judgment has been embodied in
the Indian law under Section 11 of the code of Civil Procedure, 1908. It enacts that
once a matter is finally decided by a competent Court, no party can be permitted to
reopen it in a subsequent litigation. Section 11 states 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 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 such issue has been subsequently raised, and has been heard and finally
decided by such Court.”

In the case of Satyadhyan Ghosal v. Deorjin Debi, Hon‟ble Justice Das Gupta
explained the doctrine of Res Judicata as;

“The principle of res judicata is based on the need of giving a finality to judicial
decisions. What it says is that once a res is 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 canvass the matter again.”

Cases:
 In Slochana Amma v. Narayana Nair 1994, the court held, the doctrine of
res judicata applies to quasi judicial proceedings before tribunals also.
 In the case of Govindaswamy v. Kasturi Ammal 1998, it was held by the
court that, the doctrine of res judicata applies to the plaintiff as well as the
defendant.
 The court held in the case of Umayal Achi v MPM Ramanathan Chettiar
that the correctness or otherwise of a judicial decision has no bearing
upon whether or not it operates as res judicata.

Applications of res judicata:

 The doctrine of res judicata can be invoked even in the subsequent stage
of the same proceedings. In the case of Y.B. Patil v. Y.L.Patil, the court
held that once an order is made in the course of the proceedings, it
becomes final and therefore would be binding upon the parties at any
subsequent stages of the same proceedings.
  This doctrine can also apply against co-defendants. In the case of
Mahaboob Sahab v Syed Ismail, the court held the following four
conditions must be satisfied for the application of res judicata:
1. there must be a conflict of interest between the defendants concerned.
2. it must be necessary to decide such conflicts, in order to give relief to the
plaintiff
3. the questions between the defendants to be finally decided.
4. co-defendants to be necessary and proper parties to the suit.

 Further, this doctrine can be applied even between co-plaintiffs. In the

case of Iftikhar Ahmed v. Syed Meharban Ali, the court held that if the
following four conditions are satisfied res judicata will be applicable:
1. there must be a conflict of interest between the co-plaintiffs
2. it must be necessary to decide such conflicts, in order to give relief to the
plaintiff
3. the questions between the plaintiffs to be finally decided.

Non-application of res judicata:

 Habeas corpus petitions: In the case of Sunil Dutt v Union of India, it was
held that habeas corpus, filed under fresh grounds and changed
circumstances will not be barred by a previous such petition.
 Dismissal of writ petition in limine: In Pujari Bai v Madan Gopal, it was
held res judicata not applicable when dismissed in limine ( without
speaking orders) or on grounds of laches or availability of alternate
remedies.
 Matter collaterally and incidentally in issue doesn‟t operate as res judicata
as discussed in the case of Sayed Mohammad v Musa Ummer
 Res judicata not applicable to it proceedings or fixing of fair rent
proceedings.
 Res Sub-judice

The principle of res sub-judice discourages a court from proceeding with the trial
of any suit in which the concern in matter is directly or substantially the same as a
previously instituted suit between the same parties, and the court in which the issue
was previously instituted has the power to grant the relief sought. This regulation
only applies to the suit's trial, not to the institution. It has no bearing on the court's
ability to issue interim orders such as injunctions or stays. It does, however, apply
to revision and appeals.

The aim of this regulation is to keep courts from being overburdened with cases. It
is also hoped that the plaintiff would not receive two distinct rulings in his favour
from different courts or two conflicting judgments. It also guarantees that the
plaintiff is not subjected to undue harassment. The objective of the law is to limit
the plaintiff to a single statute, avoiding the possibility of two conflicting rulings
by the same court in the same case.

The purpose of Section 10 is to prevent two courts from making conflicting rulings
in the same case. To get around this, the courts might compel the two lawsuits to
be consolidated. It was argued in the case of Anurag and Co. and Anr. vs.
Additional District Judge and Others 2 that consolidation of actions is ordered
under Section 151 for the sake of fulfilling the objectives of justice since it saves
the party from several lawsuits, delays, and expenditures. The parties are also
spared from having to produce the same evidence again.

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” of another Court. The doctrine of res sub judice 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.
Application of Res Sub Judice in India:

Section 10 of Civil Procedure Code defines „Stay of suit‟ as follows:

“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. Explanation: The pendency of a suit in
a Foreign Court doesn‟t preclude the Courts in India from, trying a suit founded on
same cause of action.”

Scope and Objective of section 10:

1. Scope: Section 10 deals with the concept of Res Sub Judice.

2. Objective: The object of Section 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:
i) Avoid wasting Court Resources.
ii) Avoid Conflicting decisions.
Conditions or essentials:

 The matter in issue in both the cases are to be substantially the same
 Previously instituted suit must be pending in the same or any other court
competent to grant:
i) Relief claimed in the suit.
ii) Relief claimed in subsequent the suit.

 Suits to the parties are to be the same or between parties under whom they or
any of them claim, litigating under the same title.
 Pendency of suit in Foreign Court doesn‟t activate Section 10 CPC.
 If suit is pending before a Court and subsequently an application is filed
before a Thasildhar, it doesn‟t invoke Section 10 as Thasildhar is not a
“Court”
 For purpose of institution, the date of presentation of plaint and not the date
of admission is considered. The term suit includes appeal.
 Any decree passed in violation of Section 10 is null and void.
 Illustration: Papita, an agent of Babita at Delhi agreed to sell Babita‟s goods
in Chennai. Papita, the agent files suit for balance of accounts in Chennai.
Babita sues the agent Papita for accounts and his negligence in Delhi; while
case is pending in Chennai. In this case, Delhi Court is precluded from
conducting trail and Papita can petition Chennai Court to direct stay of
proceedings against Delhi Court.
Cases:

1) Escorts Const. Equipments Ltd V Action Const Equipments Ltd 1998

Facts: The defendant had filed for stay of present suit, an application u/s 10 CPC,
on ground that the matter in controversy is pending in Jamshedpur Court also. This
was opposed by plaintiff on ground that, the defendants had raised issue of
jurisdiction of Jamshedpur Court to entertain same suit; and that application u/s 10
CPC can be filed in the present suit, only if objection with respect to lack of
jurisdiction was withdrawn in Jamshedpur Court.

Judgment: Court held that the conditions requisite to invoke S.10 CPC are:

o Matter in issue in both the suits to be substantially the same.

o Suit to be between the same parties or parties litigating under them
o Previously instituted suit to be in the same Court or a different Court,
which has jurisdiction to grant the relief asked.
o There is nothing to the effect that defendant should not question the
competency of previously Court in the previously instituted suit, and
there remains the fact that the plaintiff in their defense against S.10
CPC, had not stated the Jamshedpur Court is competent. Thus relief
was granted to the defendant.

2) Dees Piston Ltd V State Bank of India 1991: In this case, 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.

3) Indian Bank V Maharashtra State Co-Operative Marketing Federation 1998:

The court in this case held that, the object of prohibition in S.10 CPC, is to,
prevent courts of concurrent Jurisdiction from simultaneously trying two
parallel cases avoid inconsistent findings on the matter in issue.
Conclusion:

With the increasing number of cases in the courts and the increased burden on the
courts as a result of several frivolous and repetitive lawsuits, it is unavoidable that
these two doctrines be strictly followed in order to ensure the smooth operation of
the judicial system and to provide justice to those who are in need. These teachings
are not to be utilized for the goal of avoiding justice, and they must not be used for
that purpose. Rather, the goal is to improve the efficiency of the judicial system.

In any event, the Indian judiciary is already overwhelmed with cases, and if parties
start filing lawsuits twice, one can only imagine how difficult it will be for the
courts to reach a verdict in all of them. These theories are crucial in ensuring that
the courts' time is efficiently spent and that justice is attained for all. They do this
by guaranteeing that a lawsuit ends when the judgment is rendered and that the
same litigation on the same subject matter is not filed more than once. This
guarantees that the judicial system runs smoothly.

The doctrine of Res Sub Judice operates as a stay from the same subject matter in
issue being parallel instituted in two different Courts and the twin objectives of
Section 10 CPC are, Avoiding conflicting decisions and findings. Avoiding
wastage of Court resources and time.

The doctrine of Res Judicata, on the other hand, aims to ensure that a matter once
closed after exhaustion of all remedies is not re-opened. This is important as if it
were not in place, the cases would go on in perpetuity and there would be no
conclusion in any matter.