16/8/22

Res Sub Judice and Res Judicata-

Section 10- Stay of suit.—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 have
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.

Court in the former suit must have jurisdiction in the subsequent suit as well for res sub judice to
apply. While territorial and pecuniary jurisdiction are technical defects, subject matter
jurisdiction is non negotiable.

For res sub judice to apply, there must always be a pending suit and not a pending proceeding.

Section 11- Res judicata.—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.

Breakdown of provision-

1. No Court shall try- mandatory provision

2. Matters directly and substantially in issue has been is also directly and substantially in
issue in a former suit- Implies that matters collaterally in issue wont be barred. E.g A files

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 for arrears of rent. Court dismisses the matter on merits. The Court also decided to appoint
commissioners to decide the arrears who also decided to measure the property. Court gave
the measurement in its decree. A not being satisfied files another suit for possession of
property. Res judicata would not apply as the direct and substantial matters are not the same.
Collateral issues are those which are not relevant for the purposes of deciding the suit.

3. Former suit r/w exp. 1- Former suit is the one which was decided prior, and not which was
instituted prior.

4. Between the same parties, under the same title- Title refers to the legal capacity in which
the suit is being filed. E.g owner, tenant, legal heir etc. A grants B a piece of land for 3
months. After 3 months, A files a suit for removal of B. Suit is dismissed as A was not able
to prove the lease. Subsequently, A files a suit against B for possession. Won’t be barred by
res judicata as in the first case A is filing as a lessor and in the second he is filing as an
owner, which means the titles are different.

5. Competency of the court r/w Exp. 8- Former court must be capable of dealing w subsequent
suit, exception is Exp. 8. Sulochana Amma v Narayanan Nair- If this explanation was not
added, the litigation would never stop. Competency of former court w.r.t the subsequent suit
should be seen on the date of institution of the former suit. A files a suit against B for
eviction on 1st Jan 2022. Court gives judgment on 31st March 2022. A wants to file a suit
against B again. Date to check competency will be 1st Jan 2022.

6. Heard and finally decided- Decree has been passed.

Ex Parte decree? Res judicata will apply only where the plaintiff was heard on the merits.
Consent decree?- Res judicata will not apply as no issues were framed.

Arbitration- General principles of res judicata will apply.

Abatement- Will not apply as the suit is not carried forward.

💡 W is a wife who files a suit for maintenance against H claiming that H has deserted
her and failed to maintain her. Court is Civil Judge of Junior Division. Court decided
in favour of W. Husband files a petition for divorce claiming Wife has deserted before
District Judge. W claims that the matter was already decided by Civil Judge and res
judicata applies. Res Judicata wont apply because the former court (Civil Judge
Junior Division) was not capable of hearing the subsequent suit.

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 Constructive Res Judicata (State of UP v. Nawab Hussain)- Exp. 4
A files a suit against his dismissal and says that DIG has dismissed him. Court dismisses the suit.
A files another suit saying that his appointing authority should have been IG. Constructive res
judicata will apply.

Party ought to have been aware that he could have raised a claim in the prior suit.
Inconsistent pleadings- A files a suit saying he is the landlord of a house. The suit is decreed. He
files a subsequent suit saying that he is the tenant. Res Judicata will not apply.

💡 Res judicata can apply on issues within the same suit as well, but it will only be
applicable on issue that will not change such as jurisdiction, limitation etc.

Maxims of res judicata-

1. Nemo debet bis vexari pro una et eadem causa- Double jeopardy equivalent; no one shall be
vexed twice for the same cause.

2. Interest reipublica ut sit finis litium- There should be an end to litigation in the interest of the
State.

3. Res Judicata pro veritate accipitur- Decision rendered by the competent court shall be taken
as final.

4. Exceptio res judicata- Res judicata can be claimed as a defence.

Can res judicata be raised at a later stage (when the plaint has been admitted)?

Right to claim res judicata cannot be waived. It is a matter of right which can be raised at
any stage.
What will be the nature of the decree in-

1. Violation of res judicata- Null and void.

2. Violation of res sub judice- Not null and void.

Can a party say that the former decree was obtained by fraud and hence res judicata will
not apply?

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 Res judicata will not apply. S.44 of IEA allows to file a suit to question the validity of a decree.

💡 Order XXIII Rule 1(4)- When a suit is withdrawn or a claim relinquished, he shall not
be allowed to file the same suit again. This bar is NOT because of res judicata but
because of estoppel. Res judicata does not apply to withdrawal suits.

Does res judicata apply between co-plaintiffs or co-defendants?

Res judicata will apply.

Res judicata on Writs-

Daryao v. State of UP (1961)- Principles of res judicata is applicable on writs, except habeas
corpus.

Persons precluded from filing a suit-

S.11
S.21A

S.47(1)

S.95(2)

S.144(2)
Order II Rule 2

Order IX Rule 9

Order XI Rule 21(2)

Order XXII Rule 9

Order XXIII Rule 1(1), 1(3), 1(4)

Order XXIII Rule 3A

Res Judicata on Appeals-

A files a suit against B for ownership and possession. B files the same suit against A. A v B
dismissed by court. In B v A, the court grants decree in favor of B. A wants to appeal. He files an

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 appeal against both suits. A v B is dismissed, B v A is granted in favor of B. The appellate court
said that A v B was time barred.

In second appeal under B v A, B contended that res judicata should apply as previous appeal (A
v B) should be considered final and the appellate court agreed.
Sheodan Singh v. Daryao- Supreme Court held that if 2 different suits have been filed by same
parties on same issues and competent court grants decree. After decree, if 2 appeals are filed, if
one is dismissed on technical grounds, then that decision will operate as res judicata. It will be
considered that the appellate court gave its decision on merits even as the matter was finally
decided by the lower court.
Narhari v. Shankar- Res judicata was not applied as the cross appeals were coming from the
same suit. The identity of the suits remained the same.

Objections to jurisdiction. —
(1) No objection as to the place of suing shall be allowed by any Appellate
or Revisional Court unless such objection was taken in the Court of first
instance at the earliest possible opportunity and in all cases where issues
are settled at or before such settlement, and unless there has been a
consequent failure of justice.
(2) No objection as to the competence of a Court with reference to the
pecuniary limits of its
jurisdiction shall be allowed by any Appellate or Revisional Court unless
such objection was taken in the Court of first instance at the earliest
possible opportunity, and, in all cases where issues are settled, at or before
such settlement, and unless there has been a consequent failure of justice.
(3) No objection as to the competence of the executing Court with
reference to the local limits of its jurisdiction shall be allowed by any
Appellate or Revisional Court unless such objection was taken in the
executing Court at the earliest possible opportunity, and unless there has
been a consequent failure of justice.

What if defendant raise the objection after issues are settled?

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 He can do so after he amends his pleadings (Order VI Rule 17).

S. 23(3)- To what Court the application lies. In the case of Durgesh Sharma v. Jayashree (2008
SC), it was held that this provision is redundant.

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