Assignment On

Difference b/w Res sub-judice & Res judicata

Subject
Civil Procedure Code-I

Submitted To
Rana Amir Mehmood

Submitted By
Ahmad Zeeshan

Roll No. 27

Section-C

2017-22
Table of Contents
Introduction

Res Sub-judice
 Condition of Res sub-judice
 Elements of Res sub-judice
 When not Apply
 Purposes of Res sub-judice
 Inherent power to stay
 Suit pending in foreign court

Res judicata

 The doctrine of res judicata is based on three maxims

 Essential condition of Res judicata
 Purpose of Res judicata
 Purpose in short
 Kinds of Res judicata
 Direct Res judicata
 Constructive Res judicata

Difference Between Res sub-judice & Res judicata

Conclusion

Reference
Introduction
One of the Yardsticks of Assessing the Functioning of the courts is to assess the ‘Judicial
Efficiency’. The Judicial Efficiency is not only dependent on the working of the judges
and the courts, rather it depends more on the right implementation of the ‘common law
rules’ and doctrines, which are there to increase the pace of getting the justice in the
court, i.e, increasing the judiciary efficiency.

Section – 10 deals with the doctrine of res sub-judice and section-11 deals with the
doctrine of res –judicata. Section -10 provides the rule with regard to stay of suits
where things are under consideration or pending adjudication by a court. On the other
hand, section 11 provides the rule relates to a matter already adjudicated. It bars the
trial of a suit or an issue in which the matter directly and substantially in issue has been
adjudicated upon in a former suit. Sections 10 and 11 are mandatory.

Res sub-judice
 Subjudice in Latin means ‘under judgment’. It denotes that a matter or case is
being considered by court or judge. when two or more cases are filed between
the same parties on the same subject matter, the competent court has power to
stay proceeding.
 However, the doctrine of res-subjudice means stay of suit. This Code provides
rules for the civil court in respect of the doctrine of res subjudice. This rule
applies to trial of a suit not the institution thereof.

Example

Wife A filed a suit for separation of conjugal life and custody of minor child
against husband B. Subsequently husband B claimed custody of minor child by
filling another suit against wife B. The second suit liable to stay under section 10
of CPC,1908.

S.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,
  litigating under the same title where such suit is pending.

Conditions of Res sub-judice

This section can only be applied if the following condition are satisfied. These are:

 Two suits – Previously Instituted and Subsequently Instituted.

 Matter in issue in subsequent suit – directly and substantially in issue in previous
suit.
 Both suits between same parties or their representatives.
 Previous suit must be pending in same or in any other court.
 The court dealing with previously instituted suit competent to grant relief
claimed in subsequent suit
 Parties litigating under the same titles in both the suit

When not apply

 Court cannot apply this section where point at issues are distinct and different. 
 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.
Purposes of Res sub-judice
The section -10 intends to protect a person from multiplicity of proceedings and to
avoid a conflict of decisions. It also protects the litigant people from unnecessary
harassment. It also aims to avert (avoid) inconvenience to the parties and gives effect to
the rule of res judicata.

Purpose in short

 Avoid wasting Court Resources.

 Avoid Conflicting decisions.
 Avoid multiplicity of suit.

Inherent power to stay

 Court may use its inherent power to stay of suit. Although the provision of
section 10 is mandatory, but this provision has not taken away the court’s
inherent power under 151 so as to stay the proceedings on the facts and
circumstances of a given case to secure the ends of justice where section 10 is
not applicable.
 Therefore 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 court, court
may stay former suit by applying its inherent power.

Suit pending in foreign court

The pendency of a suit in a foreign court does not preclude the court in Bangladesh
from trying a suit founded on the same cause of action. So the court of Bangladesh may
try a subsequently instituted suit if the previously instituted suit is pending in a foreign
court.
Res Judicata
Sec-11-[Res judicata (RJ) or res iudicata, also known as claim preclusion]

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 litigating under the same title,
 in a court competent to try such subsequent suit and
 has been heard and finally decided by such Court.

Example

A sues B for damages for breach of contract. The suit is dismissed. A subsequently filed
another suit against B for damages for breach of the same contract. The subsequent suit
shall be barred by the principle of res-judicata, because B shall not be vexed twice over
for the same cause.

The doctrine of res judicata is based on three maxims:

1) Nemo debet bis vexari pro una et eadem causa

 no man should be punished twice for the same cause

2) Interest reipublicae ut sit finis litium

 it is in the interest of the state that there should be an end to a litigation

3) Res judicata pro veritate occipitur

 a judicial decision must be accepted as correct.

Essential conditions of Res judicata

 The matter directly and substantially in issue in the subsequent suit & former
suit.
 Parties of former suit & subsequent suit must be the same.
 The court which decided the former suit must be a competent court.
  The matter should have been decided on merits and final decision should have
been made after hearing.

Purposes of Res judicata

The doctrine of res-judicata is based upon there roman maxims namely:

 Nemo debet bis vexari pro un et eadem causa

 Means no man should be vexed twice over for the same cause of action.

 Interest republicae ut sit finis litium

 Means it is to the interest of the State that there should be an end to litigation.
The first maxim looks to the interest of the litigant, who should be protected
from a vexatious multiplicity of suits. The second maxim is based on the ground
of public policy that there should be an end to litigation.

Res judicata pro veritate occipitur

 means a judicial decision must be accepted as correct. This maxim is also based
on public policy.

Purposes in a short
The main objects of the res-judicata are to prevent-

 injustice to the parties of a decides suit;

 unnecessary waste of court resources,
 multiplicity of suit
 recovery of damages from the defendant twice for the same injury.
Kinds of Res-Judicata
Res-Judicata can be classified into two:

a) Direct res judicata or actual res judicata

(b) Constructive res judicata

Direct Res judicata
 It means a matter actually resolved by the court, between the parties in earlier
suit cannot be reopened through subsequent suit.
 Explanation 3 deals with the direct res judicata. It provodes that the matter
above referred to must in the former suit have been alleged by one party and
either denied or admitted, expressly or impliedly by the other.

Constructive Res Judicata
 It is the interest of justice that a party should bring forward his whole case in
respect of the matter in suit.
 Constructive res judicata means a matter which might and ought to have been
made ground of claim or defense in a former suit, but a party ignores it, then the
issue shall be deemed to have been a matter directly and substantially in issue in
such suit.
 In other words if a party had an opportunity that he ought to have taken a plea as
a plaintitf or defendant, if he fails to do so, and the matter is decided the decision
will operate as res-judicata in respect of all issues, which were taken and which
ought and might have taken and second suit would not lie for such issue.
Difference between Res Sub Judice and Res Sub Judicata

Res Sub-judice Res Judicata

 This Rule is mentioned in Section 10  This Rule is Mentioned in Section 11
of CPC. of the CPC
 It is not directly defined in CPC  It is directly defined in the CPC
 There should be two suits and  There are two suits in which the
matter of the previously instituted former suit is already decided by
suit is still not decided  by the court the court
 In this, the matter in issue in both  In this,  the matter directly and
the suits must be substantially the substantially in issue in both the
same suits are actually or constructively
same
 In this rule, parties are litigating in  In this, such parties must have been
both the suits under the same title under the same title in the former
suit
 Both suits should be between the  Issue are settled between the
same parties or their parties in the former suit
representatives
 It apply to only suits and appeals  It applies to both suits and
applications
 Defense of Res Judice cannot be  Defense of the Res SubJudice can be
taken in Written Statements taken into Written Statements
 It prohibits two parallel proceedings  It prohibits the second trial of the
between the same parties same dispute between the same
parties

 Res sub-judice bars to the trial suit.  Res judicata bars to file a suit.
 Conclusion
 It is concluded that the rule of sub judice can be found in Section 10 of the CPC.
 Section 10 bars the two parallel litigation between the same parties on the same
cause of action.
 The basic reasoning behind this provision is to prevent wastage of courts
resource, protect the right of the defendant, reduce the burden on courts and
avoid two contradictory decision.
 This provision was inserted in CPC to meet the end of the justice and prevent
abuse of the court.
 There are lots of cases pending before the Indian Judiciary system.
 This doctrine helps the courts to prohibit repetitive suits on the same cause of
the action.
 Thus Section 10 or the principle of Res Sub Judice makes our Judiciary system
more efficient.

References
 https://www.lawteacher.net/free-law-essays/constitutional-law/res-judicata-
and-code-of-civil-procedure-constitutional-law-essay.php

http://www.shareyouressays.com/knowledge/object-and-essential-conditions-
of-the-rule-of-res-judicata-india/111592

https://www.scribd.com/document/320383510/CPC-Project-docx
 https://cpcdecoded.wordpress.com/2016/09/18/the-rule-of-res-sub-judice-an-
analysis-of-section-10-of-the-cpc/#_edn4