Civil Procedure Code,

1908
Res-Judicata & Res Sub-
Judice
Amit Pratap Singh
Assistant Professor in Business Laws
 Res judicata

• Section 11 contains the rule of conclusiveness of the judgment

• the maxim of Roman jurisprudence :
• “interest reipublicae ut sit finis litium” (it concerns the State that
there be an end to law suits)
• the maxim:
• “nemo debet bis vexari pro una et eadem causa” (no man should
be vexed twice over for the same cause).
 Res judicata

• The section does not affect the jurisdiction of the court but
operates as a bar to the trial of the suit or issue, if the matter in the
suit was directly and substantially in issue (and finally decided)
in the previous suit between the same parties litigating under the
same title in a court, competent to try the subsequent suit in
which such issue has been raised.
 Res judicata

• “Res judicata pro veritate accipitur” (a thing adjudged must be

taken as truth) is the full maxim which has, over the years, shrunk
to mere “ res judicata”.
• (Vide: Kunjan Nair Sivaraman Nair v. Narayanan Nair (2004) 3
SCC 277).
• 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. (sec. 11)
 Object of res-judicata

• i. Give finality to the judgment of the Court,

• ii. Protect a person from endless proceedings and

• iii. Avoid re-determination of same issues which have already

been adjudicated upon.
 Doctrine of res-judicata is based on the
following maxims

• i. “Ex captio res judicata”. Meaning: one suit and one decision is
enough for any single dispute;
• ii. “Nemo debet bis vexari pro una et endem cuasa”. Meaning: no
one ought to be vexed twice for one and the same cause;
• iii. “Interest republicae ut sit finis litum”. Meaning: in the interest
of State there should be an end to litigation;
• iv. “Res judicata pro veitee acciptur” . Meaning: a matter already
adjudicated upon must be accepted as truth.
 Condition for res-judicata
• 1. Same parties: In both suits i.e. the suit which is pending before
the Court and the suit which has been decided (former suit)
should be same.
• 2. Matter in issue: Subject matter in later suit (which is pending)
must be directly and substantially same in the earlier suit (which
was decided). Subject matter need not to be identical but
substantially same.
• 3. Same title: The party must be litigating in the subsequent suit
must have litigated under the same title i.e. the same capacity in
the earlier or former suit.
 Condition for res-judicata

• 4. Concurrence of jurisdiction: The Court who decided the former

suit must have been competent to try the subsequent suit in
which the issue has been subsequently raised.
• 5. Final decision: The matter in subsequent suit must have been
‘heard and decide’ by the former suit. ‘Heard and decided’ means
fully heard and finally decided on merit.
 Types of res judicata
• Res judicata as to claim: Res judicata is applicable to entire suit
i.e. applicable to all issues in subsequent suit and thereby the suit
is barred.
• Res judicata as to issue: Res judicata is applicable to some or
particular issue out of many issues in the subsequent suit. Section
11 state that, “No Court shall try any suit or issue”.
• Constructive res judicata: Any matter which might and ought to
have been made ground of defence or attack in such former suit
shall be deemed to have been a matter directly and substantially
in issue in such suit.
 Exceptions as to Res-Judicata
• There are certain Exceptions when the principle cannot be applied:
• If the decree has been obtained by practicing misrepresentation or fraud on
the court, or where the proceedings had been taken all together under a
special statute.
• Not every finding in the earlier judgment would operate as a res
judicata. Only an issue, which is ‘directly’ and ‘substantially’ decided in the
earlier suit, would operate as res judicata.
• Where the decision has not been given on merit, it would not operate, in case,
the appeal of the judgement and decree of the court below is pending in the
appellate court, as then the judgement of the court below cannot be held to be
final, and the findings recorded therein would not operate as res judicata.
 Exceptions as to Res-Judicata
• When the judgment is non-speaking. (Union of India v. Pramod Gupta (Dead)
by LRs & Ors., (2005) 12 SCC 1).
• Where the matter has not been decided on merit earlier, the doctrine of res
judicata is not applicable (State of Uttar Pradesh & Anr. v. Jagdish Sharan
Agrawal & Ors., (2009) 1 SCC 689).
• It does not apply to criminal cases, where the entire proceedings have been
initiated illegally and without jurisdiction. Fatima Bibi Ahmed Patel v. State of
Gujarat (2008) 6 SCC 789.
• When a matter involves a pure question of law (Raju Ramsing Vasave v.
Mahesh Deorao Bhivapurkar, (2008) 9 SCC 54).
• In cases of Dismissal in limine or dismissal on default, the principle of res
judicata does not apply.
 RES SUB-JUDICE
• Section 10 contains doctrine of res subjudice.
• ‘Res’ means a subject matter against which legal proceeding has
been instituted and ‘subjudice’ means a case under trial or under
judgment.
• Section states that, the Court shall not proceed with the trial of
suit in which:
i.The matter in issue in a previously instituted suit between
the same parties;
ii.Where such suit is pending in the same or any other Court
in India.
 Object of res subjudice

• To prevent Courts of concurrent jurisdiction for simultaneous

entertaining and adjudicating two parallel litigation for same
cause, same subject matter or for same relief.

• To prevent possibility of two conflicting/contradicting judgments.

 Object of res subjudice

• The OBJECT of the section is to protect a person from a multiplicity

of proceedings and to avoid a conflict of decisions. It also protects
the litigant people from unnecessary harassment (SPA Annamalay
Chetty v. BA Thornlill, AIR 1931 PC 263
 Effect of res subjudice

• Section does not prohibit institution of more than one suit but it
simply stays subsequent suit(s) after institution.

• If husband filed a suit for divorce at one place and wife also filed
divorce suit before same or different court, then the subsequently
instituted suit shall be stayed and first suit shall continue.
 Conditions for Res-subjudice
• 1. There must be two suits:
– Doctrine of res-subjudice will be applicable for subsequent
suit. Obviously there are two suits and subsequent suit will be
stayed.
• 2. The suits must be between same parties:
– Both suits, must be between same parties. Parties may be
actually same or their successor/representative litigating under
the same title.
• 3. The matter in issue in later suit must be directly and
substantially the same in the previous suit:
– Subject matter in both suits must be directly and substantially
same.
 Conditions for Res-subjudice
• 4. Both the suits must be pending in a Court of law:
• Both suits i.e. earlier and subsequent suit must be pending
in the Court of law. Both suits may be pending in any
Courts in India or even in the same Court. Court includes
Supreme Court or a Court established outside India,
established or continued by Central Government but does
not include a foreign Court.
 Conditions for Res-subjudice

• 5. The parties must be litigating under the same title:

• In both suits, parties must be litigating under the same
title i.e. in the same capacity. When these conditions are
fulfilled, the Court shall not proceed in the suit and has to
stay the proceeding.
 Res-subjudice

• This Doctrine cannot be applied when the point at issues are

distinct and different (Alimallah v. Sheikh, 43 DL RLL 3), or even
where there are some issues in common and others are different
issues (Abdur v. Asrafun, 37 DLR 271).
• It is also not applicable between the suits where although the
parties are same, the issues are not the same (Manzar v. Rema, 33
DRL 49).
 Res-subjudice

• The court may use its inherent power to secure the ends of justice
when section 10 is not applicable, even to prevent abuse of process
of the court, the court may stay ‘former suit’ too, by applying its
inherent power (Ram v. Devidayal, AIR 1954 Bom. 176).
• There is no bar on the power of an Indian Court to try a
subsequently instituted suit if the previously instituted suit is
pending in the foreign court (Explanation to s. 10).
 Res-subjudice

• With Respect to Interlocutory/interim orders, these can be

considered as an exception to the doctrine of res sub judice. 
• Certain orders can be passed without a trial, such as attachment.
Hence, such orders are not affected by res sub judice.
• So, the rule of res Subjudice only bars the trial and does not bar the
courts from adjudicating upon interlocutory orders such as the
appointment of receiver, injunction or attachment (Sennaji
Kapuechand v. Pannaji Devachand, AIR 1922 Bom 276).
 Examples

• Escorts Const. Equipments Ltd V Action Const Equipments Ltd ,

1998 , Delhi High Court
Difference between Res Sub Judice and Res Sub
Judicata
Difference between Res Sub Judice and Res Sub
Judicata