2cpc

Res-subjudice

Q. 10. What is res-subjudice? Explain.

OR

Does the Code of Civil Procedure make a provision for preventing

Courts of concurrent jurisdiction from trying at the same lime two
paralleled suits in respect of same matter in issue? If so, what?
Discuss.

Ans.

Stay of Suit [Res-subjudice] [Section 10]

Section 10 of the Code of Civil Procedure lays down the law with
regard to stay of suits where things are under consideration of
pending adjudication by a Court. Section 10 of the Code reads:

"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 suit is pending in the same or any other Court in
India having 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.

Explanation. The pending of a suit in a foreign Court does not

preclude the Courts in India from trying a suit founded on the
same cause of action.

The section stipulates a mandate to the Courts not to 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 the Court in which the previous
suit is pending is competent to grant the relief claimed. [Ambika
Sahu v. Sumitra Sahu, AIR 1991 Ori. 1271
Object of section. The object of the section is to prevent a Court of
concurrent jurisdiction from simultaneously entertaining and
adjudicating upon two parallel litigations, in respect of the same
cause of action, the same subject-matter and same relief. The
policy of the law is to confine the plaintiff to one litigation, thus
obviating the possibility of contradictory verdicts by two or more
Courts in respect of the same relief. Section 10, C.P.C. is intended
to prevent multiplicity of proceedings and passing of contradictory
decree by Courts of concurrent jurisdiction.

Conditions for application of Section 10. For the application of this

section the following conditions must be fulfilled:

(1) A previously instituted suit is pending in a Court. In case of S.

Kumar v. Sudhakara, AIR 2009 Ker. 170 where there was
pendency of execution proceeding in a previously instituted suit.
Held that this was not a ground to stay the subsequent suit by
invoking Section 10. This section lays down a procedure. It does
not confer upon the parties any substantive right.

(2) The matter in issue in both suits must be substantially and

directly the same. [Ashok Kumar Yadav v. Noble Designs Pvt. Ltd.,
AIR 2006 Cal 237.1

(3) Both the suits must be between the same parties or their
representatives.

(4) Such 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 the same

Court in which the subsequent suit is brought, or in any other
Court in India or in any Court beyond the limits of India
established or continued by the Central Government, or in the
Supreme Court. For the purpose of Section 10 the date of
presentation of plaint and not the date of admission is the date of
institution. [Hirendra v. Dhirendra, ILR 62 Cal 1115; Prism
Entertainment Pvt. Lad. v. Prasad Productions Pvt. Ltd., AIR 2006
Cal. 206].

In this section the term 'suit' includes appeals. Section 10, C.P.C.
is mandatory in character and once the conditions laid down are
satisfied, the Court is debarred from proceeding with the trial of
the later suit. The earlier suit cannot be stayed in the exercise of
inherent power under Section 151.

Stay of suit can not be ordered merely on account of pendency of

criminal case between same parties. [Arun Bhimavad v. Anshul
Jain, AIR 2016 MP 63].

Where one of the proceedings is not a suit.-An important question

in this regard is as to whether Section 10, C.P.C. can apply where
one of the two proceedings is not a suit. In Inderpal Singh v. B.T.
Wollen Mill, (AIR 1974 Del. 95), the Delhi High Court answering
the question in negative has observed that Section 10 of the Code
of Civil Procedure applies only to suits and cannot apply where
one of the two proceedings is not a suit.

Effect of contravention. A decree passed in contravention of

Section 10 is not a nullity and can be executed.

Consolidation of suits. The words "Court shall proceed with the

trial of any suit" were intended to bar the separate trial of any suit
in which the matter in issue was also directly and substantially in
issue in a previously instituted suit between the same parties, But
these words do not apply to the simultaneous hearing of a later
and earlier suit after the consolidation of the two. Section 10 was
not intended to take away the inherent powers of the Court to
consolidate for the interests of justice in appropriate cases [Gupta
v. East Asiatic Co., AIR 1960 All. 1841.

Matter in issue. In Tandon v. Rawat, AIR 1978 Del. 221], the Delhi
High Court observed that it is not the requirement of the law that
matter in the issues involved in the two suits should be totally
identical, but they must be substantially the same [G.P. Chetty v.
M. Ramaswamy (1967) 2 Andh WR 442), in Wallace Co. Ltd. v.
B.M.N. Sherwalee [AIR 1975 Cal. 411); See also Mehta Gandhi v.
Shree Pipes Ltd., AIR 1990 Del. 139), it has been held that the
expression "matter in issue" in Section 10 has reference to the
entire subject-matter in issue between the parties and mere
identity of some of the issues in both the suits is not sufficient to
attract Section 10; and unless the decision of the suits operates
as res judicata in the other suit it cannot be said that the matter
in issue is directly and substantially the same in both the suits
that is to say that the decision in one suit must non-suit the other
suit before it can be said that the matter in both the suits is
directly and substantially the same.

Q. 11. (a) What do you mean by res-judicata? What are the

essentials of it?

OR

What do you understand by the principle of res-judicata? Discuss

the essential conditions of the doctrine of res-judicata.

(b) State whether it applies to co-defendants.

Ans.

(a) Res-judicata: Meaning of

It is based on the following maxims of Roman Jurisprudence:

(i) Interest republicae est sit finis litium.(It is in the interest of

State that litigation should not be protracted but finished).

(ii) Nemo debt lis vexari pro una et eadem causa. - (No man ought
to be vexed twice for one and the same cause).

(iii) 'Res-judicata pro veritah selipoter'.-(A judicial decision must

be accepted as correct).

Res-judicata connotes a thing already adjudicated upon. "Res'

means a thing and "judicata' means already decided.

The rule as enunciated in Section 11 of the Civil Procedure Code

runs as follows:

"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".
Essentials of res judicata

To constitute a matter res-judicata the following conditions must

be

fulfilled:

(1) Matter in issue. There must be the matter directly and

substantially in is directly and subsent suit of issue must be the
same matter which was directly and substantially in issue either
actually or constructively in former suit.

"A matter in issue" between the parties is the right claimed by

one party and denied by the other, in another words it means the
facts on which the right is claimed and the law which has
applicability to determine that issue. Thus, in order to constitute a
matter res-judicata, it is necessary that it was in issue in the
former suit directly and substantially. For example:

A sues B as principal on contract; the suit is dismissed. Then A

sues B as principal on the same contract. Held, that the suit was
barred by the principle of res-judicata for "matter in issue" namely
contract in dispute was the same in the subsequent suit as was in
former suit. In another words it was directly and substantially in
issue in the subsequent suit.

If the matter was in issue directly and substantially in a prior

litigation and decided against a party then the decision would be
res-judicata in a subsequent proceeding.

Under Explanation IV it has also been made clear that 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 issue in such suit. For example:

A sues B for a sum of money on a contract for the supply of boats

and on failing therein sues B again for the same amount as
compensation for ervices rendered in supplying boats. The suit is
barred inasmuch as the tter ground could have been advanced as
a ground of attack in the former

In this reference, in Loman Kutty v. Thomman, AIR 1976 SC 1645

it held that it is not enough to constitute a matter res-judicata
that it was issue in the former suit. It is further necessary that it
must have been in 'directly and Girectly substantially'. And a
matter cannot be said to have been and substantially" any and
denied ntially" in issue in a suit unless it was alleged by one or
admitted either expressly her. [Explanation III]. or by necessary
implication by

In the case of Y.L. Sud v. Ansal Properties and Industries Ltd.. 206
(NOC) 894 (Del) it was observed by the Delhi High Court that
when bsequent suit did contain identical cause of action, issue or
rights termined of same parties the suit could not be stayed on
the basis of res If the same parties the subsequent suit are
altogether differissed on ve raised in earlier case di subsequent
suit would not be dismissed ground of res judicata. (Gwalior Sugar
Company Ltd. v. State of M.P., A 2006 MP 218).

(2) Same parties. The former suit must have been a suit between
the same parties or between parties under whom they or any of
them claim Explanation VI of Section 11 is to be read with this
condition which runs a thus:

"Explanation VI.-Where persons litigate bona fide in respect of a

public right or of a private right claimed in common for
themselves ang others, all persons interested in such right, shall,
for the purposes of thi section, be deemed to claim under the
persons so litigating."

Thus, the condition recognizes the principle that judgment and

decree bind only parties and privies. Privy in English Law means a
person who claims under a party. When the parties in the
subsequent suit are differen from those in the former suit there is
no res-judicata. This condition may be illustrated as thus:

A sues X for rent, X says that M and not A is the owner, and Coun
holds that A has failed to prove his title to the land in suit. A then
sues and M for a declaration of his title to the land. The suit is not
barred becaus the parties in both the suits are not the same.

The case of Wali Mohd. v. Rahmat Bee, AIR 1999 SC 1136,

illustrate the situation where parties and property in question are
the same in th earlier and subsequent suit. Here 'B' in earlier suit
filed against 'A' sough declaration of his right to manage and
possess a graveyard and Dargah. Th trial Court gave the finding
that the property in question was waqf propen and graveyard,
Dargah and the house were under the management of 'A'. Th
Court gave a further finding that the house in question was used
as Musafi Khana. It was held that both the above finding operate
as res judicatai subsequent suit by 'A' as Mutwalli against B for
possession.

For the purpose of this element meaning of term "former suit"

shall b the same as defined under Explanation I which reads as
thus:

"Explanation 1. The expression 'former suit' shall denote a suit

whic has been decided prior to the suit in question whether or not
it was institute prior thereto."

In the case of Union of India v. Pramod Gupta, AIR 2005 SC 3708

was held that the principle of res judicata would apply only when
the li (suit) was inter partes (between the same parties) and
attained finality in respect of issue involved. The aforementioned
principle will however, haw no application in a case where the
judgment or an order had been passed by Court having no
jurisdiction-or in case involving pure question of law. will have no
value in a case where the judgment is not a speaking one.

(3) Same title. The parties as aforesaid must have litigated under
th same title in the former suit.
Term "Same title" connotes the "same capacity" of the parties in
which they sue or are sued. It has no concern with the cause of
action or with the subject-matter of two suits. If right claimed in
subsequent suit is the same as was in the previous suit, the
subsequent suit will be barred.
Adversely, if a right is claimed under a different title the
subsequent suit is not burred as res-judicata for example:

A sues B for possession of certain lands alleged to have come to

his share on a partition of joint-family property with B. The
defence is that the family property has not yet been divided, and
the suit is dismissed on a finding to that effect. A subsequent suit
by A against 8 for partition of the family property is not barred.

A brings a suit against B to recover possession of math property

claiming it as of a deceased mahant. The suit is dismissed
because A the heir failed to produce a certificate of succession to
establish his heirship. If A wings another suit against B claiming
the math property as manager of the math on behalf of the math,
it will not be barred by res judicata because in the two suits A has
sued in two different capacities.

First suit is instituted for possession as reversioner of A. Second

suit is filed for the same relief as reversioner of B. In both the
cases the claim is as an individual and therefore, under the same
title. Hence the subsequent suit is barred

In case of Harbans Singh v. Sant Hari Singh, AIR 2009 SC 677,

where the appellant did not claim any right, title and the interest
in his individual capacity but he was the vice-president of the
Managing Committee which had raised the claim, the Supreme
Court held that for all intent and purposes he was also a plaintiff
in the suit and therefore affected by res-judicata.

(4) Competent Court.-The Court which decided the former suit

must have been a Court competent to try the subsequent suit or
the suit in which such issue is subsequently raised. Explanations II
and VIII of the section is to be read with this condition. The
explanations read as thus:

"Explanation II.-For the purposes of this section the competence

of a Court shall be determined irrespective of any provisions as to
a right of appeal from the decision of such Court.

Explanation VIII. An issue heard and finally decided by a Court of

mited jurisdiction, competent to decide such issue, shall operate
as res dicata in a subsequent suit notwithstanding that such Court
of limited Jurisdiction was not competent to try such subsequent
suit or the suit in hich such issue has been subsequently raised."

The Supreme Court has held that in order to determine whether a

Court which decided the former suit had jurisdiction to try the
subsequent suit, gard must be had to the jurisdiction of the Court
at the date of the former and not to its jurisdiction at the date of
the subsequent suit. Jeevantha v. Hanumantha, AIR 1954 SC 9,
M.H. Ravindranath v. M.L.H. Rao, All 1988 Mad 177.)

In case of Chandrabhai K. Bhoir v. Krishna Arjun Bhoir, AIR 2009 S

1645 where an order was passed by the court without jurisdiction,
it we held that such order is a nullity, Coram non judice and non-
est in the eye law. Therefore principle of res-judicata cannot apply
in such cases.

In applying the principle of res-judicata it is the competency of

origina court that should be considered. If the decision of the
original court is n within its jurisdiction the fact that the decision
was confirmed in appeal writ petition will not make it valid and
binding.

Administrative decisions by executive authorities do not bind

Coun and much less operate as res-judicata. (State of West
Bengal v. Subhas Kumar Chatterjee, AIR 2010 SC 2927].

(5) Heard and finally decided. This condition requires that the
matter directly and substantially in issue in the subsequent suit
must have been heard and finally decided by the Court in the
former suit. In othe words, it should appear that the Court has
exercised its judicial mind and thereafter has come to final
decision upon any issue of law or fact, a decision which was
necessary to the determination of the suit. [P. Venkata Subb Rao
v. Jagannath Rao, AIR 1967 SC 591]

Thus, Section 11 envisages a matter having been heard and

decide finally by a Court and, therefore, that section does not
apply to a consen decree. [P. Venkata Subba Rao v. Jagannadha
Rao, AIR 1967 SC 591 Court further held that there cannot be res-
judicata if the former suit had bee dismissed as settled out of
Court. Therefore, subsequent suit is not barred b res-judicata.

In the following cases a decision is said "to have been heard and
finally decided" provided the decision was on merit:

(6) Ex-parte judgments and decree,

(i) Dismissal of a suit under Order XVII, Rule 3, C.P.C.

(iii) Decree and judgment based on an award.

(iv) Dismissal of suit owing to plaintiff's failure to adduce evidence

al the hearing.

(v) Dismissal of a suit under Order IX, Rule 3, C.P.C.

Where a suit abates and attains finality, another suit for the same
property becomes barred [Madan Mohan Mishra v. Chandrica
Pandey, (2009) 2 Supreme 107.1

In the following cases a decision cannot be said "to have been

heard and finally decided" as the decision is not on merit of the
cases:

(1) Suit dismissed for want of jurisdiction.

(ii) Suit dismissed for default of plaintiff's appearance under Order
IX, Rule 8, but a fresh suit on the same cause of action may be
barred under Order IX, Rule 9.

(iii) Suit dismissed for non-joinder or misjoinder of parties or

multifariousness or the suit being badly framed or some other
technical ground.

(iv) Suit dismissed for plaintiff's failure to produce probate or

letters of administration or succession certificate when the same
is required by law to entitle the plaintiff to a decree.

(v) Suit dismissed for failure to furnish security for cost under
Order XXV, Rule 2.

(vi) Where the earlier suit is dismissed on similar other technical

ground without finding on the rights and interests of the parties.
Regarding this essential, Explanation V attached to Section 11 is
deserved to be mentioned which runs as thus:

"Explanation V. Any relief claimed in the plaint, which is not

expressly granted by the decree, shall, for the purposes of this
section, be deemed to have been refused."

But in a money suit where issue regarding payment of interest

was not heard and decided in writ petition filed earlier the suit for
the payment of interest would not be barred by res judicata.
[State of Bihar v. Shakti Tubes Ltd., AIR 2006 Pat. 177].

In case of Noharlal Verma v. Distt. Co-operative Central Bank Ltd..

AIR 2009 SC 664, it was held that to constitute res-judicata it is
not enough that the matter was directly and substantially in issue
in the previous suit but requirement of the Section 11 is that the
matter must have been heard and finally decided also. In other
words it must be seen that in arriving at a decision or definite
finding upon the issue of law or fact the court has exercised its
judicial mind.

Executability once upheld, second challenge would be barred by

principle of res-judicata. [Fingertips Solutions Pvt. Ltd. v.
Dhanashree Electronics Ltd., AIR 2016 NOC 690 Cal.1.

(b) Res-judicata between co-defendants

A matter may be res judicata between the co-defendants also. If A

files a suit against B and C, and there is a matter directly and
substantially either actually or constructively in issue between B
and C and unless an adjudication is given upon this matter, the
suit of A against B and C cannot be determined, then the
adjudication may operate as res judicata in a subsequent suit
between B and C in which either of them is plaintiff and the other
defendant. The following conditions must be fulfilled before a
matter can be res judicata between co-defendants-
(1) a conflict of interest between the co-defendants,

(ii) the necessity to decide that conflict in order to give the

plaintiff appropriate relief,
(iii) a decision of the question between the co-defendants,

(iv) the co-defendants were necessary parties in the former suit

Gurdeo Singh v. Chandrika Singh, ILR 36 Cal. 193].

The rules of res judicata amongst co-defendants is also governed

by those rules which apply to normal rules of res judicata (Most
Rev. Ρ.Μ.Α. Metropolitan v. Moran Mar Marthoma, AIR 1995 SC
2001).

In Mahbob Sahab v. Syaed Ismail, (AIR 1995 SC 1205), the

Supreme Court emphasized that while applying the doctrine of res
judicata between co-defendants caution is to be taken. The Apex
Court expressed its opinion in following words:

"The doctrine of res judicata would apply even though the party
against whom it is sought to be enforced was not co-nominee
made a party nor entered appearance nor did he contest the
question. The doctrine of res judicata must, however, be applied
to co-defendants with great caution, the reason is that fraud is an
extrinsic collateral act, which vitiates the most solemn proceeding
of Courts of Justice. If a party obtains a decree from the Court by
practicing fraud or collusion, he cannot be allowed to say that the
matter is res judicata and cannot be re-opened."

Q. 12. Explain and illustrate the principle of constructive res

judicata. Can an ex parte decree operate as an res judicata?

Ans.

Constructive Res judicata

Constructive res-judicata is provided under Explanation IV to

Section 11 of the Code. Explanation IV reads as thus:

"Any matter which might and ought to have been made a ground
of attack or defence in the former suit shall be deemed to have
been directly and substantially in issue in that suit."

Thus, a matter which might or ought to have been made a ground

of attack or defence is a matter which is constructively in issue,
i.e., though it is not actually in issue directly and substantially.
This action makes no difference between the claim that was
actually made in a suit and the claim, that might and ought to
have been made if the parties had opportunity of controverting it,
that is, the same thing as if the matter had been actually
controverted and decided. An adjudication is conclusive and final
not only as to the actual matter determined but as to every other
matter which the parties might have litigated and had been
decided as incident to or essentially connected with the legitimate
purview of the original action both in respect of matters of claim
or defence. [Aanaimuthu Thevar v. Alagammal, AIR 2005 SC
4004)
Explanation IV to Section 11 of the Code of Civil Procedure would
have come into play only if same decision had been finally given
before the second application was filed. In that event it could
have been urged that all available point should have been urged
before that decision was given.

In this case the second application was filed before any decision
on the first application was given. The appellants could have been
instead of filing a second application, amended their first
application and taken these pleas in that application itself. Had
they amended the first application there would have been no bar
of res judicata or constructive res judicata. If that be so the
contention that the second application was barred by principles of
res judicata or constructive res judicata cannot be accepted
International Wollen Mills v. Standard Wool (V.K.) Ltd., AIR 2001 SC
21341.

A suit under Section 92 of the Code is a representative suit and as

such bind not only the parties named in the suit title but all those
who are interested in the trust. It is clear that Section 11 read
with its Explanation IV leads to the result that a decree passed in
a suit instituted by persons to which Explanation IV applies will
bar further claims by persons in the same right in respect of
which the prior suit had been instituted. Explanation IV thus
illustrates one aspect of constructive res judicata. The same result
follows if a suit is either brought or defended under Order 1, Rule
8 [R. Naidu v. V.N. Charities, AIR 1990 SC 444].
In Food Corporation of India v. Ashis Kumar Ganguli, AIR 2009 SC
2582, the petitioners were absorbed in service by FCI., who were
deputationists from the State Government. They filed first writ
petition against their absorption in Grade III and it was allowed.
They filed second writ petition for grant of advancement
increment. It was pleaded that constructive res-judicata will apply
to the second appeal, but such plea was not admitted. In first
petition no such claim has been raised where no certainty was
existed as to grade. Such plea was also not raised before the High
Court. It was held by the Supreme Court that such claim cannot
be raised for the first time before the apex court.

Ex parte decree as a res judicata. A matter can be said to have

been heard and finally decided notwithstanding that the former
suit was disposed of ex-parte.

Q. 13. Distinguish between the followings:

1. Res judicata and Res subjudice.

2. Actual and constructive Res-judicata.

3. Res judicata and Estoppel.

Ans. 1. Res judicata and Res subjudice: Distinction

The rule of res judicata may be distinguished from res-subjudice

in this respect, that rule of res-subjudice relates to a matter which
is pending in judicial inquiry while the rule of res judicata relates
to a matter adjudicated upon or a matter on which judgment has
been pronounced.
Rule of res-subjudice bars the trial of a suit in which the matter
directly and substantially is pending adjudication in a previous
suit whereas rule of res judicata bars the trial of a suit or an issue
in which the matter directly and substantially in issue already had
been adjudicated upon a previous suit

2. Actual and constructive Res-judicata: Distinction

(1) Actual res-judicata is provided in Section 11 of the Code. While

on the other hand constructive res-judicata is provided in
Explanation IV attached to Section 11 of the Code.

(2) When the matter directly and substantially in issue in the

subsequent suit had been directly and substantially in issue in the
former suit, it shall be the case of actual res-judicata if other
essential of res-judicata are satisfied.

While on the other hand, when a matter which might or ought to

have been made a ground of attack or defence but had not been
so made, it would be the case of constructive res-judicata. In
other words when a matter in issue in the subsequent suit was
not directly and substantially in issue in the former suit but if
deemed that it ought to have been so made, it would be the case
of constructive res-judicata.

(3) Actual res-judicata is a genus while constructive res-judicata is

a species.

3. Res judicata and Estoppel: Distinction

Generally, the doctrine of res-judicata is treated as a branch of

the law of estoppel. Even then res judicata differs from estoppel in
many aspects.

Doctrine of res judicata differs from estoppel chiefly in not

resulting from an act of party himself but from a decision of Court
whereas estoppel is the act of a party himself.

The rule of res judicata proceeds on the ground of public policy,

f.e.. there should be an end to litigation while the rule of estoppel
proceeds upon the doctrine of equity, viz., that one who by his
conduct has induced another to alter his position to his
disadvantage, cannot be allowed to turn round and take
advantage of such alteration in the other's position.

Estoppel is a part of the Law of Evidence, as provided in Section

115 of the Indian Evidence Act. It prevents a man from saying one
thing at one time and opposite thing at another time, while res
judicata precludes a man from agitating the same thing in
successive litigations.
The rule of res judicata prohibits an inquiry in limine (at the
thresh-hold) and ousts the jurisdiction of the Court to try the case
while estoppel is only a rule of evidence.

The doctrine of res judicata is based on the presumption that the

decision given in former suit is true while estoppel prevents a
party from revoking what he has already accepted as truth.
Q. 14. State the utility of res-judicata and elaborate its elements.

Ans. Utility of res-judicata. The rule of res judicata prevents

plurality of suits between the parties for the same relief after
there has been executable judgment between them. This bar does
not relate to judgments only but extends to all facts involved in it
as necessary for decision, Lea judgment operates as a bar with
respect to all findings which are essential to sustain the judgment.

Thus, if a decree is passed on the footing of facts admitted res-

judicata extends not merely to the actual decision in the case but
to the common facts admitted by both the parties and made the
foundation of the decree.

Multiplicity of the proceedings are tried to be barred by the

provisions of res-judicata and it accords finality to an issue, which
directly and substantially had arisen in the former suit between
the same parties or their privies been decided and became final,
so that parties are not vexed twice over, vexatious litigation
would be put to an end and the valuable time of the court is
saved. It is based on public policy, as well as private justice. They
would apply therefore, to all judicial proceedings whether civil or
otherwise. It equally applies to quasi-judicial proceedings of the
tribunals other than the civil courts.

Q. 15. What is the position of constructive res-judicata with regard

to a subsequent suit when a former suit has been dismissed for
the want of jurisdiction?

Ans. When a former suit has been dismissed for the want of
jurisdiction, it cannot operate as res-judicata to a subsequent suit.
Because a judgment given by a court which is not competent to
deliver it cannot operate as res-judicata. For the application of the
rule of res-judicata, it is necessary that the court trying the former
suit must have been competent to try the subsequent suit itself.
Explanation II of Section 11 is to be read with this condition. Mere
competency of the former court to try the issue raised in the
subsequent suit is not enough. The competency of the former
court must have existed at the time of institution of the suit. In
case of Gokul Mander v. Premanand, 29 IA 196: ILR 29 Cal 707,
the Privy Council held: A decree in a previous suit cannot be
pleaded as res-judicata in a subsequent suit unless the Judges by
whom it was made had jurisdiction to try and decide not only the
particular matter in issue, but also the subsequent suit itself in
which the issue is subsequently raised.

Thus when a former suit has been dismissed for the want of
jurisdiction it cannot operate as res-judicata.

Q. 16. Whether doctrine of res-judicata is applicable to proforma

defendants?
Ans. Res-judicata and Proforma defendants. A party may be joined
as a defendant in a suit merely because his presence is necessary
in order to enable the court effectually and completely to
adjudicate upon the question involved. In such a case, no relief is
sought against him and the matter in issue in the suit is not in
issue between him and any other party. and cannot, therefore, be
res-judicata against him.

Illustration. A claiming to be entitled to possession of tank as

tenant of X sues B for possession. X is joined as proforma
defendant and no relief is claimed against him. The suit is
dismissed on the findings that B is the owner. X then sues B for
possession and B contends that the issue of ownership is res-
judicata. This contention must fail for the issue was decided in the
former suit between A and B and not between X and B for X was
only a proforma defendant.