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Traceing the origin of the principles of 'Res-judicata' and 'Res-subjudice'.

Explain its importance in view of provisions of CPC and use caselaw.

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 ‘Trace the origin of the principles of ‘Res-judicata’ and
‘Res-subjudice’. Explain its importance in view of provisions
of CPC and use caselaw. Draft a consolidated provision to
cover both principles.’

Research Paper

CODE OF CIVIL PROCEDURE

Name – Aditya Singla

➢ Bluebook citation style.

Introduction

The doctrine of res judicata is explained under section 11 of the CPC. It’s a phrase which
means “a thing decided” in Latin. The SC of India in Lal Chand v. Radha Krishan1 stated that
once the last judgement given in a suit, the ensuing judges who are confronted with a suit
which identically same as the previous judgement, they would apply the Res Judicata precept
'to save the impact of the main judgment'. In this way, a similar case can't be taken up again
either in the equivalent or in the distinctive Court of India. This is simply to keep them from
multiplying judgments, so a common offended party may not recuperate harms from the
respondent twice for similar damage.

In the case Satyadhyan Ghosal v Deorjin Debi2 the doctrine of res judicata has been
explained by Das Gupta, J

“The principle of res judicata is based on the need of giving finality to

judicial decisions. What it says is that once a res is judicata. It shall not be
adjudged again. Preliminary it applies as between past litigation and future
litigation. when a matter whether on a question of fact or a question of a
decision is final, either because no appeal was taken on higher court or
because the appeal was dismissed, or no appeals lies, neither party will lie,
neither part will be allowed in future suit bar proceeding between the same
parties to canvass the matter again”3

This doctrine of law is now applicable to writ procedures also. It has additionally been
chosen by Supreme Court in M S M Sharma v Sinha4, that when once a writ appeal to has
been moved in a High Court or Supreme Court, and has been dismissed there on benefits, at
that point a resulting writ can't be moved in a similar court on a same cause of action.

The doctrine of res sub-judice is explained under section 10 of CPC. Sub-judice means
“under judgement” in Latin. Section 10 proclaims that no court ought to continue with the
preliminary of any suit in which the matter in issue is directly and substantially in issue in a
formerly founded suit between the same parties and the court before which the formely
instituted suit is pending is eligible for the relief asked.5

The doctrine applies to preliminary of a suit and not the foundation thereof. It additionally
does not stop a court from passing interim orders, for example, giving admonition or stay,
appointment of receiver,6 and so on it, nonetheless, applies to appeals7 and revisions.8

1
(1977) 2 S.C.C. 88 (India).
2
A.I.R. 1960 S.C. 941 (India).
3
Ibid 943 (India).
4
A.I.R. 1960 S.C. 1186 (India).
5
Indian Bank v Maharashtra State Coop. Marketing Federation Ltd, (1998) 5 S.C.C. 69 (India).
6
Ibid.
7
State of Rajasthan v Dewan Suraj Prakash, A.I.R. 1973 Raj. 119 (India).
8
Re Vaithilinga Pandara Sannadhi, A.I.R. 1930 Mad. 381 (India).
‘The stay must be of the last suit and not of the prior suit between the same parties. The word
suit incorporates an appeal, yet it does exclude an application for leave to appeal.’9

The origin of Res Judicata and Res Sub Judice

The Res Judicata has a very ancient history.10 "Res judicata pro veritateoccipitur" is the full
Latin maxim which has, over the years, shrunk to mere "Res Judicata". The concept of Res
Judicata finds its evolvement from the English Common Law system, being derived from the
overriding concept of judicial economy, consistency, and finality. From the common law, it
got included in the Code of Civil Procedure, 1908 and which was later as a whole was adopted
by the Indian legal system. From the Civil Procedure Code, the Administrative Law witnesses
its applicability. Then, slowly but steadily the other acts and statutes also started to admit the
concept of Res Judicata within its ambit. Under the Roman law, a defendant could successfully
contest a suit filed by a plaintiff on the plea of “ex captio res judicata” which means “one suit
and one decision is enough for any single dispute”.11

The doctrine of Res Judicata is based on three Roman Maxims:

1. Nemo debet lis vaxari pro eaderm causa (no man should be vexed twice for the same
cause).12
2. Interest republicae ut sit finis litium (it is in the interest of the state that there should be
an end to a litigation).13
3. Re judicata pro veritate occipitur (a judicial decision must be accepted as correct).14

Res Judicata was known to ancient Hindu Law as Purva Nyaya (former judgement).15 In
Roman Law it was identified as “one suit and one decision was enough for any single
dispute”. The rule of res judicata further accepted in the Commonwealth countries and in the
European continent.16

At times, the rule worked harshly on individuals. For instance, when the former decision was
obviously erroneous. But its working was justified on the great principle of public policy,
which requires that there must be an end to every litigation. The basis of the doctrine of res
judicata is public interest and not absolute justice. In the event of a wrong decision

At times, the principle worked cruelly on people. For example, when the previous decision
was clearly wrong. Nevertheless, its working was legitimized on the considerable rule of
public policy, which requires that there must be a conclusion to each suit. The premise of the
principle of res judicata is open intrigue and not absolute justice. In case of a wrong decision,
“the suffering citizen must appeal to the law-giver and not to the lawyers”.17

9
Mahamud Wazed, Code of Civil Procedure: Res sub-judice & Res Judicata, RICHARD PRICE (Not Specified),
https://www.academia.edu/11204996/Code_Of_Civil_Procedure_Res_sub-judice_and_Res_Judicata.
10
C.K. TAKWANI, CIVIL PROCEDURE WITH LIMITATION ACT, 1963 70-71 (Abhinandan Malik, 8th ed.) 1983.
11
Sharmila Chandran, Res Judicata, RICHARD PRICE (Not Specified).
12
C.K. TAKWANI, CIVIL PROCEDURE WITH LIMITATION ACT, 1963 68 (Abhinandan Malik, 8th ed.) 1983.
13
Ibid.
14
Ibid.
15
C.K. TAKWANI, CIVIL PROCEDURE WITH LIMITATION ACT, 1963 70-71 (Abhinandan Malik, 8th ed.) 1983.
16
Lachhmi v Bhulli, A.I.R. 1927 Lah. 289 (India).
17
Sheoparsan Singh v Ramnandan Singh, A.I.R. 1916 P.C. 78 (India).
The principle of res judicata is established on the basis on good conscience, equity and
justice.18 Res judicata is a species of the doctrine of estoppel.19

Res sub-judice is a part of res judicata. Res sub-judice is a Latin proverb which is nowhere
found to have been characterized in the Code of Civil Procedure. Res sub-judice alludes to an
issue pending preliminary and works as a bar to a preliminary of a suit which is pending
decision in a formerly founded suit.20 The doctrine of res sub-judice, hence, bars a
preliminary on certain conditions yet not preserve the institution of an ensuing suit. The
similar rule is contained in Section 10 of the CPC, 1908. The heading of Section 10 is "stay
of suit," it doesn't work as a bar to the institution of the ensuing suit. It is just the preliminary
of the suit that isn't to be continued with.21

The key difference between res judicata and res sub-judice are:

1. Whereas res judicata applies to matter adjudicated upon (res judicatum), res sub-
judice applies to a matter pending trial (sub judice);22
2. Res judicata bars the trial of a suit or an issue which has been decided in a former suit,
res subjudice bars trial of a suit which is pending decision in a previously instituted
suit.23

Conditions for Res Judicata

The conditions of res judicata is not comprehensive and it is regularly developing.24 Several
conditions must be fulfilled to constitute res judicata:

1. There must be two suits between same parties or their representative.25

2. They should prosecute under a same title.

3. The matter directly and substantially in issue in both the suits must be related Or, the issue
directly and substantially in issue in the ensuing suit should likewise be directly and
substantially in issue in the previous suit.26

4. One of such suits more likely be heard and lastly decided (it is known as a previous suit).
The doctrine of res judicata won't make a difference when the whole issue was still in appeal
and had not achieved conclusiveness was still in debate.27

18
Lal Chand v. Radha Krishan, (1977) 2 S.C.C. 88 (India).
19
Ishwar Dutt v Land Acquisition Collector, A.I.R. 2005 S.C. 3165 (India).
20
C.K. TAKWANI, CIVIL PROCEDURE WITH LIMITATION ACT, 1963 57 (Abhinandan Malik, 5th ed.) 1983.
21
Maharashtra State Coop. Marketing Federation Ltd v Indian Bank, A.I.R. 1998 S.C. 1952 (India).
22
C.K. TAKWANI, CIVIL PROCEDURE WITH LIMITATION ACT, 1963 72 (Abhinandan Malik, 8th ed.) 1983.
23
Ibid.
24
Madhvi Amma & Bhawani Amma v Kunjikuntty Pillai & Meenakshi Pillai, A.I.R. 2000 S.C. 2301 (India).
25
SIR DINSHAW FARDUNJI MULLA, THE KEY TO INDIAN PRACTICE, 227 (Justice Surya Kant, 11th ed.) 1994.
26
Ibid 228.
27
Hameeda Begum v Champa Bai, A.I.R. 2009 N.O.C. 2693 MP-DB (India).
5. the court which chose the previous suit must be capable to concede relief asserted in the
subsequent suit. the rule of res judicata won't have any significant bearing where order was
passed without jurisdiction.28

“In order to decide the question whether a subsequent proceeding is barred by res judicata it
is necessary to examine the question with reference to the (i) forum or the competence of the
court, (ii) parties and their representatives, (iii) matters in issue, (iv) matters which ought to
have been made grounds for defence or attack in the former suit and (v) the final decision.”29

Principle of Constructive Res Judicata

“If by any judgement or order any matter in issue has been directly and explicitly decided,
the decision operates as res judicata and bars the trial of an identical issue in a subsequent
proceeding between the same parties. The principle of res judicata also comes into play when
by the judgement and order a decision of a particular issue is implicit in it, that is, it must be
deemed to have been necessarily decided by implication; then also the principle of res
judicata on that issue is directly applicable. When any matter which might and ought to have
been made a ground of defence or attack in a former proceeding but was not so made, then
such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in
it is deemed to have been constructively in issue and, therefore, is taken as decided.”30

Res judicata and estoppel

The principle of Res Judicata is generally seen as a part of the doctrine of Estoppel.31 Res
judicata is estoppel by verdict or estoppel by judgement.32 The rule of constructive res
judicata is nothing but principle of estoppel.33 But the doctrine of res judicata separates itself
essential circumstances from the principle of estoppel.34

Purpose of res judicata

The main purpose of res judicata is to prevent –

1. Injustice to a party of a decided suit.35

2. Multiplicity of suit.36
3. Unnecessary misuse of the resources of the court.37
4. recuperation of the damages from the respondent twice for same damage.38

28
Chandrabai K. Bhoir v Krishna A. Bhoir, A.I.R. 2009 S.C. 1647: (2009) 2 S.C.C. 315 (India).
29
Jaswant Singh v Custodian, (1985) 3 S.C.C. 648 (India).
30
Workmen v Board of Trustees, Cochin Port Trust, (1978) 3 S.C.C. 119: A.I.R. 1978 S.C. 1283 (India).
31
Guda Vijayalakshmi v Guda Ramachandra, (1981) 2 S.C.C. 646 (India).
32
V. Rajeshwari v T.C. Saravanabava, (2004) 1 S.C.C. 551 (India).
33
Batul Begam v Hem Chandar, A.I.R. 1960 All 519 (India).
34
Sita Ram v Amir Begam, I.L.R. 1886 (8) All 324 (India).
35
Mahamud Wazed, Code of Civil Procedure: Res sub-judice & Res Judicata, RICHARD PRICE (Not Specified),
https://www.academia.edu/11204996/Code_Of_Civil_Procedure_Res_sub-judice_and_Res_Judicata.
36
Ibid.
37
Ibid.
38
Ibid.
Res Judicata between co-defendants

General rule for res judicata says that it applies between defendant and the plaintiff. “But
adjudication between co-defendants will operate as res judicata if there is a conflict of interest
between the defendants concerned, it is necessary to decide the conflict in order to give the
relief which the plaintiff claims, the question between the defendants has been finally
decided, and the co-defendants are necessary or proper parties in the former suit.”39 “Where
there is no conflict of interest between co-defendants or when the conflict between co-
defendants is not adjudicated on merits the decision will not operate as res judicata between
them.”40

Applicability of Res Judicata to other proceedings

It applies to the procedures for execution of a decree as per Explanation 7 of S. 11 of CPC.41

It has been held that the general rules underlying the principle of res judicata are relevant to
writ petitions under Art. 32 and 226 of the constitution.42 They are additionally relevant to the
arbitration made under Industrial Disputes Act, 1947.43 The principle of res judicata
additionally applies to arbitration procedures, PIL44 and criminal procedures,45 however does
not make a difference to interlocutory orders, consent decree and taxation procedures. It
likewise held that S. 11 isn't comprehensive and any suit can be held to be banished by
principle of res judicata regardless of whether each of the conditions said in S. 11 are not
satisfied, “if it appears to the court that there is an attempt to re-agitate an issue once settled
and decided.”46

Mandatory provision

S.11 is obligatory and not directory in nature. The judgment in a previous suit can be kept
away from just by taking a plan of action to s.44 Evidence Act, 1872 on grounds of fraud or
collusion. Gross negligence in previous suit doesn't lead to collusion or fraud and thus
perform as a bar to consequent suit.47

Conditions for Res sub-judice

Some conditions must be satisfied so that the suit can be stayed.

1. There must be two suits. One previously and the subsequently instituted.48
2. The matter in issue in previous suit is directly and substantially in issue in the
subsequent suit.49

39
Iftikhar Ahmed and Ors. v Syed Meharban Ali and Ors, A.I.R. 1974 S.C. 749 (India).
40
SIR DINSHAW FARDUNJI MULLA, THE KEY TO INDIAN PRACTICE, 228 (Justice Surya Kant, 11th ed.) 1994.
41
Ibid 231.
42
Daryao v State of Uttar Pradesh, A.I.R. 1961 S.C. 1457 (India).
43
Bombay Gas Co. v Shridhar Bhau, A.I.R. 1961 S.C. 1196 (India).
44
Dr. Rao VBJ Chelikani v Govt. of A.P., 2010 2 A.L.T. 94 125 DB (India).
45
Fatma Bibi Ahmed Patel v State of Gujrat A.I.R. 2008 S.C. 2392: 6 S.C.C. 789 (769) (India).
46
SIR DINSHAW FARDUNJI MULLA, THE KEY TO INDIAN PRACTICE, 232 (Justice Surya Kant, 11th ed.) 1994. &
Workmen CP Trust v Board of Trustee, A.I.R. 1978 S.C. 1283 (India).
47
Jallur Venkata Seshayya v Tahdaviconda Koteswara Rao, A.I.R. (24) 1937 P.C. 1 (India).
48
SIR DINSHAW FARDUNJI MULLA, THE KEY TO INDIAN PRACTICE, 233 (Justice Surya Kant, 11th ed.) 1994.
49
Ibid.
 3. Both must be pending in courts in India or courts outside India established under the
authority of Central Government.50
4. Both the suits must be between the same parties or their representatives.51
5. The court in which previous suit is instituted, must have jurisdiction to grant relief
claimed in the subsequent suit.52
6. Both the parties must be litigating under the same title.53

Where court cannot apply res sub-judice

“Court cannot apply this section where point at issues are distinct and different, or even
where there are some issues in common and others are different issues. This section is also
not applicable between the suits where although the parties are same, but the issues are not
the same.”54

Test for applicability

The crucial test for pertinence of the doctrine of res sub-judice is whether the decision in a
formerly established suit would work as res judicata in an ensuing suit.55

Purpose of res sub-judice

The S. 10 defend a man from multiple procedures and to avert a conflict of decisions. It
additionally defends the disputant people from irrelevant provocation. It additionally intends
to avoid burden of the parties and offers effect to the principle of res judicata.56

Inherent power to stay

Court has the inherent power to stay a suit. The provisions of S. 10 are compulsory, yet the
inherent power of court is not taken away by this provision under 151 so that the proceedings
can be stayed on the facts and circumstances of the given suit to protect the ends of justice
when S. 10 of CPC is not applicable.57 The court may use its inherent power to avoid abuse
of procedure of the court, the court may stay previous suit.58

Suit pending in foreign court

If a suit is pending in a foreign court that does not exclude the court in Bangladesh from
trying a suit set up on a same cause of action. So, the court of Bangladesh may take a
subsequently instituted suit if the formely instituted suit is pending in a foreign court.59

50
Ibid.
51
Ibid.
52
Ibid.
53
Ibid.
54
Mahamud Wazed, Code of Civil Procedure: Res sub-judice & Res Judicata, RICHARD PRICE (Not Specified),
https://www.academia.edu/11204996/Code_Of_Civil_Procedure_Res_sub-judice_and_Res_Judicata.
55
National Institute of MH & NS v C Parmeshwara, A.I.R. 2005 S.C. 242 (India).
56
S.P.A. – Annamalay Chetty v B.A. Thornhill, A.I.R. 1931 P.C. 263 (India).
57
Suraiya v Alimullah 24 D.L.R. 133 (Canada).
58
Ram v Devidayal, A.I.R. 1954 Bom. 176 (India).
59
Explanation of S.10 of the CPC, 1908.

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