Res- Sub Judice(S.

10) and
Res Judicata (Sec. 11)
Res- Sub Judice
• Section 10 of Code deals with doctrine of res sub-judice.
• ‘Res’ means a thing or a matter and sub-judice means under
consideration or pending adjudication.
• It provides that 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 and that the
court in which the previous suit is pending is competent to grant the
relief claimed.
Object:
• Section 10 lays down the rule of Res-sub judice which prevents the
court of concurrent jurisdiction from simultaneously adjudicating
upon two parallel litigations in respect of same matter between the
same parties.
• Thus, Section 10 is enacted keeping in mind following objectives:

• To protect a person from multiplicity of proceedings.

• To avoid a conflict of decisions by the court of concurrent
jurisdiction
• To avert the inconvenience to the parties and give effect to
the rule of res-judicata
Conditions:
For the application of this Section, the following conditions must be fulfilled:
1. There must be two suits, one, previously instituted and the other, subsequently
instituted.
2. The matter in issue in both suits must be directly and substantially the same.
3. Both the suits must be between the same parties or their representatives.
4. The parties must be litigating under the same title in both the suits.
5. The Court in which the previous suit is pending must have jurisdiction to grant the
relief claimed in the subsequent suit.
6. The previously instituted suit must be pending in any of the following Courts—
a. In the same court in which the subsequent suit is brought; or
b. Any other court in India; or
c. Any court beyond the limits of India, but established by the Central Govern
ment: or
d. Before the Supreme Court of India.
• The provision of Section 10 is mandatory.
• As soon as the essential elements are fulfilled, the court mot proceed
with the suit.
• A previously instituted suit is a suit instituted first in point of time
• Suit pending in foreign court: Explanation to Section 10 clarifies that
there is no bar on the power Indian Court to try a subsequent suit if
the previously instituted suit is pending in foreign court.
• Test for applicability of Section 10 :The test for applicability of Section 10 is whether
the decision in a previously instituted suit would operate as res-judicata in the
subsequent suit. If it is so, the subsequent suit will be stayed [ Radha Dev v. Deep
Narain, (2003) 11 SC 759]
• Inherent power to stay: Even where the provisions of Section 10 do not strictly apply, a
civil court has inherent power under Section 151 to stay a suit to achieve the ends of
justice [P. V. Shetty v. B.S. Girdhar, AIR 1982 SC 83)
• Similarly, court has inherent power to consolidate different suits in such cases.
[Indian Bank v. Maharashtra State Coop. Marketing Federation, (1998) 5 SCC 69]

• Effect of contravention of Sec. 10: A decree passed in contravention of Section 10 is

not a nullity and cannot be disregarded at the stage of execution. It is only the trial and
not institution of subsequent suit which is barred under Section 10. Thus, it only lays
down a rule of procedure. [Pukhraj D. Jain v. G. Gopala
Krishna, (2004) 7 SCC 25 1]
• Applicability to interim orders: Section 10 does not bar institution of suits, but it
bars trial of the suit. Since this rule applies to the trial of the suit and not the
institution it does not preclude the courts from passing interim orders such as
grant of injunction, appointment of receiver etc. [Indian Bank v. Maharashtra
State Coop. Marketing Federation, (1998) 5 SCC 69)].
• Doctrine of res sub judice is not applicable in the following instances:-
• 1. Suits pending in foreign court: If the previous suit is instituted in a foreign
court then it will not bar Indian courts from trying subsequently instituted
suit. Foreign court is defined in Section 2(5) of the Code. It means court
situated outside India and not established by the authority of the Central
Government.
• 2. Interim orders: Discussed above [see Indian Bank v. Maharashtra State
Coop. MarketingFederation, (1998) 5 SCC 69 mentioned above]
• 3. Summary suits: In Indian Bank v. Maharashtra State Coop. Marketing
federation, (1998) 5 SCC 69 Supreme Court held that Section 10 is applicable
to regular suits and not summary suits under Order 37 of the Code.
• Note: Detailed explanation of the terms like previous suit, matter in issue, directly
and substantially in issue will be done in the topic of res judicata.]
RES JUDICATA [S.11]
• Section 11 of the Code incorporates the doctrine of res judicata. It is also
called rule of conclusiveness.
• Res means dispute or subject matter and Judicata means decided.
• Thus, res judicata means matter adjudicated.
• It means that once the matter is finally decided by the court no one can
re-open it in a subsequent litigation.
• Under Roman law it is known as ex captio res judicata which signifes
previous or former judgment.
• Supreme Court in Satyadhyan Ghosal v. Deorijin Debi, AlR 1960 SC 941
held that principle of res iudicata is based on the need of giving finality to
judicial decisions. Primarily it applies between past litigation and future
litigation.
• Section 11 provides 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 matter has
been subsequently raised, and has been heard and finally decided by such
court.

• For Example, A sues B for possession of certain properties on the basis of a

sale deed in his favor. B impugns the deed as fictitious. The plea is upheld and
the suit is dismissed. A subsequent suit for some other Properties on the basis
of same sale deed is barred as the issue about the fictitious nature of the sale
deed was actually in issue in the former suit directly and substantially.
Object of Res Judicata
The doctrine of res-judicata is based on the following maxims:
• (1) Interest Republicae ut sit finis litium-It is in the interest of State
that litigation should not be protracted but finished.
• (2) Nemo debt bis vexari pro una et eadem causa-No man ought to
be vexed twice for one and the same cause,
• (3) Res judicata pro veritate occipitur-A judicial decision must be
accepted as correct.
• Supreme Court in Lal Chand v. Radha Krishnan, (1977) 2 SCC 88 held
that principle of res judicata is conceived in the larger interest that all
litigation must, sooner than later, come to an end.
Res-judicata vs. Res sub-judice

1. Res-judicata applies to a matter adjudicated while Res sub-judice

applies to matter pending trial.

2. Res judicata bars the trial of the suit is which has been decided in former
suit while Res sub-judice stays the trial of suit which is pending decision
in previously instituted suit.

3. Interim orders cannot be passed in case where the res-judicata is applied

while An order of stay of suit does not take away power of court from
passing interim orders as held in Indian Bank v. Maharashtra State
Corp. Mktg. Federation Ltd., AIR 1998 SU 1952.
• Section 11 whether exhaustive: It t is well established that doctrine of res judicata codified
in Section 11 is not exhaustive. This was observed by Supreme Court in Lal Chand v. Radha
Krishan,. AIR 1977 SC, where the court held that the principle motivating Section 11 can be
extended to cases which do not fall strictly within four letters of law.

• Res judicata and rule of law: Supreme Court in Daryao v. State of U.P., AIR 1961 SC 1457
held that the res judicata is an essential part of rule of law. Court in this case held that
doctrine of res judicata is equally applicable to the writs under Article 32 and 226 of the
Constitution of India. The basis of res judicata is public policy. It is in the interest of public at
large that finality should be attached to the judgment.

• Applicability of res-judicata execution proceedings: Explanation VIl to Section 11

specifically provides that the provision of Section 11 applies to execution proceedings also.
This was added by way amendment by Act 104 of 1976.

• Two stages of the same proceeding: The doctrine of res-judicata also applies to different
stages of the same proceeding or suit. If any interlocutory order decides the controversy in
part between the parties, such decision would bind the parties and operate as res-judicata at
all subsequent stages of the suit. [Satyardhan Ghoshal v. Deoranjan Debi, AIR 1960 SC 941]
Condition for application of Section 11
For the purpose of applicability of res-judicata, following conditions must be satisfied:
1. The matters directly and substantially in issue in the subsequent suit must be the
same, which was directly and substantially (either actually or constructively) in issue
in the former suit. [read explanation I, III, IV with this condition]
2. The former suit must have been a suit between the same parties or between parties
under whom they or any of them claim. [read explanation VI with this condition)
3. The parties must have been litigating under the same title in the former suit.
4. The Court which has decided the former suit must be competent to try the
subsequent suit. [read explanation II and IV with this condition]
5. The matters directly and substantially in issue in the subsequent suit must have
been heard and finally decided in the former suit.
Former suit
‘Former suit’ means a suit which has been decided prior to the suit in
question, whether or not it was instituted prior thereto [Explanation 1 to
Section 11).
For example, if Suit No. 1 between A and B was instituted on 1 January 2000
and Suit No. 2 between A and B was instituted on 1 January 2001, then in
this scenario Suit No. 1 will be previously instituted suit because it was
instituted prior in point of time.
However if Suit No. 2 is decided on 1 July 2005 and Suit No. 1 is still pending
or is decided subsequent to Suit No.2 then in this scenario Suit No. 2 will be
former suit with reference to Suit No. 1 because it is decided prior in point of
time.
Therefore, for 'previous suit’ we will have to look at the date of institution
of suit and for ‘former suit' we have to look at the date of decision of the
suit.
Matter in issue
The expression 'matter in issue' means the rights litigated between the parties, ie.,
the facts on which the right is claimed and the law applicable to the determination
of that issue [Mathura Prasad v. Dossibai N.B. Jeejebhoy, AIR 1971 SC 2355].

Classification of matter in issue:

• 1. Directly and substantially in issue
• Actually in issue
• Constructively in issue
• 2. Collaterally/incidentally in issue

Only a matter directly and substantially in issue in a former suit will operate as res-
judicata in subsequent suit.
The question whether or not a matter is directly and substantially in issue
would depend on:
• Whether a decision on such issue would materially affect the decision of the
suit in question. Further,

• Matter must be alleged by one party to the suit and denied or admitted by
the other party either expressly or impliedly. (Explanation III to Section 11]
• A matter in respect of which relief is claimed is also matter in issue.
The words 'directly and substantially' in issue have been used under Section
11 is contradistinction to the words 'collaterally or incidentally in issue' and
decisions on such issue will not operate as res-judicata.
Constructive res judicata
Matter constructively in issue or Constructive res judicata:
• This is provided under Explanation IV to Section 11.
• According to it a matter will be constructively in issue if it 'might and ought' to have
been made a ground of defence or attack in former suit. It is also called 'constructive
res judicata’
Principle underlying constructive res judicata: According to the doctrine of
constructive res- judicata, where the parties have had an opportunity of raising a
matter, that should be taken to be the same thing as if the matter had been actually
raised and decided.
Thus, it helps in raising the bar of res-judicata by suitably construing the general
principles of res judicata. That is why the rule is called constructive res judicata which,
in reality, is an aspect or amplification of general principles of res judicata [state of U.P.
v. Nawab Hussain, AIR 1977 SC 1680].

Supreme Court in Devilal Modi v, STO. AIR 1965 SC 1150 held that if the doctrine of res
judicata is not applied, then the doctrine of finality of judgment would be materially
affected.
Constructive res judicata
• For example, A sues B to recover damages for breach of contract and
obtains a decree in his favour.
B cannot afterwards sue A for recession of contract on the ground
that it did not fully represent the agreement between the parties
since that ground ought to have been taken by him in previous suit as
a ground of defence.
‘Might’ and 'Ought':
• The primary object of Explanation IV is to cut short the litigation by compelling the parties to
the suit to rely upon all the grounds of attack or defence available to them. If they fail to take
such ground which they 'might' and ‘oughť' to have taken, it would be taken as raised and
decided.

• The expression ‘might’ and 'ought’ are of wide import.

• The expression ‘might’ presupposes that the party affected had knowledge of the ground of
attack or defence at the time of previous suit.
• The term 'ought compels the party to take such ground.
• These above two words are to be read conjunctively and not disjunctively.

• Supreme Court in Workmen v. Board of Trustees, Cochin Port Trust, AIR 1978 SC 1283 held that
where 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 is deemed to have been
constructively in issue to avoid multiplicity of litigation.
• For example, where A files a suit for declaration that he is entitled to
a land as heir of B and the suit was dismissed, A cannot claim, in later
suit, title to same property on the basis of adverse possession if he
had knowledge of such defence or attack and he failed to raise it in
previous suit. If no such ground was available to A when previous suit
was decided, then constructive res-judicata will not apply in such
case.
• Similarly, in the case of State of U.P. Nawab Hussain, AIR 1977 SC
1680, 'A' a sub-inspector of police was dismissed from service by
D.I.G. He challenged the order of dismissal on ground that no
opportunity to hearing was given to him. The petition was dismissed
by High Court. He then filed a suit and raised additional ground that
since he was appointed by I.G., therefore D.I.G. had no power to
dismiss him as per Article 311 (2) of the constitution. When the
matter went to Supreme Court in appeal, the Hon'ble Court held that
the suit was barred by constructive res-judicata as the plea was
within knowledge of plaintiff and could well have been taken in
earlier writ petition.
Issues
3 Types
• Issue of fact
• Issue of Law
• Mixed question of Issue of fact and Law
Supreme Court in Mathura Prasad v. Dossibai N.B. Jeeejeebhoy, (1970) 1
SCC 613 held that a issue of fact and mixed issue of law and fact fact would
operate as res judiciata. Court further held that generally the decision of
court on the issue of law will also operate as res judicata but a pure
question of law unrelated to facts which gives the rise to a right does not
operate as res judicata.
Same parties or their privies
• The second condition of res judicata is that the former suit must have
been a suit between same parties or between parties under whom
they or any of them claim.
• A 'party’ is a person whose name appears on the record at the time
of decision.
• For example, A sues B for rent. B contends that A is not the landlord
and the suit is dismissed. A subsequent suit by A or by X claiming
through A is barred by res-judicata
Res judicata between co-defendants:
Supreme Court in Syed Iftikar Ahmed v. Syed Meharban Ali AIR 1974 SC
749 held that matter may be res judicata between co-plaintiffs and co-
defendants also if the following conditions are satisfied-
a) There must be a conflict of interest between co-plaintiffs and co-
defendants;
b) It must be necessary to decide such conflict in order to give relief to
the plaintiff;
c) The questions between co-defendants and co-plaintiffs must be
finally decided;
d) Co-defendants/plaintiffs were necessary or proper parties in the
former suit.
Res judicata in Representative Suits
(Explanation VI]
A representative suit is an instance where the person suing or sued in
representative character represent the parties and hence, a decision in such
suit would operate as res-judicata. For the applicability of Explanation VI,
following conditions shall be fulfilled:
• There must be right claimed by one or more persons in common for
themselves and other not expressly named in the suit.
• The parties not expressly named in the suit must be interested in such
right.
• The litigation must have been conducted bona fide on behalf of all
parties interested.
• All conditions of O.8R.1 must be complied with.
Res judicata and pro forma defendant:
• A pro forma defendant is a person against whom no relief is claimed.
• Person is made party for complete and effective disposal of suit.
• Since no matter is raised against him and no relief is claimed,
therefore, finding does not operate as res judicata against pro forma
detendant.
• For example in suit for title, State through District collector is made
party.
Same Title
• The third condition of res judicata is that the parties to the subsequent
suit must have litigated under the same title as in the former suit.
• Same title means same capacity. The test for res judicata is the identity
of title in two litigations and not the identity of the subject matter
involved in the two cases [Kushal Pal v. Lal, (1976) 1 SCC 449].
• The term 'same title' has nothing to do with the cause of action or
subject matter of two suits.
• For example, A sues B for title to the property as an heir of C under the
customary law. The suit is dismissed. The subsequent suit for title to the
property as an heir of C under the personal law is barred.
Competent Court

The further condition of res judicata is that the court which decided the
former suit must have been a court competent to try the subsequent suit if
brought at the time when first suit was brought.
Decision in a previous suit by a court not competent to try the subsequent
suit, will not operate as res judicata. [Jeevanth v. Hanumantha, AlR 1954
SC9).
Such court must have been either:
• a court of exclusive jurisdiction; or
• a court of concurrent jurisdiction; or
• a court of limited jurisdiction.
• Court of exclusive jurisdiction: A plea of res-judicata can be successfully
taken in respect of judgments of courts of exclusive jurisdiction like
Revenue Courts, Administrative Court, etc.
• Court of concurrent jurisdiction: A court of concurrent jurisdiction means
concurrent as regards pecuniary limit as well as subject-matter of the suit.

• Court of limited jurisdiction: In 1976, Explanation VIII was added in

Section 11 which provides that if an issue has been heard and decided by a
court of limited jurisdiction competent to decide such issue, such decision
would operate as res judicata in subsequent suit notwithstanding that such
court was not competent to try subsequent suit in which suit issue was
subsequently raised.
• Heard and finally decided
The fifth condition for application of res-judicata is that the matter
must be heard and finally decided in the former suit, i.e., the court
has applied its judicial mind on matter in issue between the parties.
• So, decision shall be on the merits of the case and no res-judicata will
be applied in case former suit is dismissed for Want of jurisdiction or
for default of plaintiff's appearance or any other technical defect, etc.
[Panduang emachandra v. Shantibai Ramachandra, 1989 Supp (2)
SCC 627].