THE ICFAI UNIVERSITY DEHRADUN

ICFAI LAW SCHOOL

CIVIL PROCEDURE CODE ASSIGNMENT

ASSIGNMENT TOPIC: RES JUDICATA

SUBMITTED TO:

MRS. SEEMA GAUR

ASST. PROFESSOR

ICFAI LAW SCHOOL

SUBMITTED BY:

PRIYA BHATNAGAR

4TH YEAR BBALLB

SECTION B

17FLICDDN02093
 INTRODUCTION

Section 10 and 11 of the Civil Procedure Code, 1908 deals with the doctrine of res sub-judice
and res judicata. Res sub-judice means any case under trial within the court and res judicata
means any matter which is already settled by the court. India, has adopted the principle of res
judicata in S.11 of the Code of Civil Procedure, 1908 (hereinafter mentioned as “C.P.C.”) .
Res' in Latin means thing 'Judicata' means already decided . This rule operates as a bar to the
trial of a subsequent suit on an equivalent explanation for action between an equivalent
parties. Its basic purpose is - "One suit and one decision is enough for any single dispute".
The rule of 'res judicata' doesn't depend on the correctness or the incorrectness of the previous
decision . It is a principle of law by which a matter which has been litigated can't be re-
litigated between an equivalent parties. This is referred to as the rule of "res judicata" (thing
decided) . The aim of this rule is to finish litigation once a matter has been adjudicated. It
aims to save lots of the court time and stop harassment to parties. The word “Res” came from
a Latin word which suggests Subject or fact, and “Sub-judice” means into account or under
trial. So, Res Sub-judice means any fact under trial within the court. The concept of res sub-
judice is applicable for less than the cases under trial within the court. There is nothing
mentioned within the Civil Procedure Code,1908 specifically in respect of Res sub-judice.
But in section 10 of the Code there's an idea named stay of suits which is nothing but English
term of the concept “res sub-judice”.

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 RES JUDICATA

The essence of the doctrine of res judicata is the judicially formulated proposition that a

matter which has been adjudicated in a prior action cannot be litigated a second time. The

policies which res judicata is designed to serve include the public interest in decreasing

litigation, protection of the individual from the harassment of having to litigate the same

cause of action or issue against the same adversary or his privy more than once, and

facilitation of reliance on judgments1. Essentially, the doctrine of res judicata in general is

based on the three following maxims 2 : ‘nemo debet lis vexari pro una et eadem casua’

meaning that no man should be vexed twice for the same cause, ‘interest republicae ut sit

finis litium’ or that it is in the interest of the State that there should be an end to litigation,

‘andres judicata pro veritate occipitur’ meaning that a judicial decision must be accepted as

correct.

The principle itself is founded upon the principles of justice equity and good conscience, and

applies to various civil suits, criminal proceedings, writs, execution proceedings etc 3. The

underlying purpose for this judicially created doctrine was to instill finality into litigation and

to provide for sound economic use of judicial resources4. 

1
Mulla, “Code of Civil Procedure”, 15th ed. 2012 pg 4.
2
http://www.legalblog.in/2011/02/res-judicata-law, last visited on 4th September 2015.
3
Supra at 7, pg 5.
4
http://legalperspectives.blogspot.in/2010/03/constructive-res-judicata-law-revisited , last visited on 4th
September 2015.

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 ESSENTIALS FOR RES JUDICATA

The general principle of res judicata is embodied in its different forms in three different

Indian major statutes—Section 11 of the Code of Civil Procedure, Section 300 of the Code

of Criminal Procedure, 1973 and Sections 40 to 43 of the Indian Evidence Act, yet it is

not exhaustive. Here, we are concerned only with Section 11 of the Code of Civil

Procedure. Following conditions must be proved for giving effect to the principles of res

judicata under Section 115—

A. That the parties are same or litigating under same title,

B. That the matter directly and substantially in issue in the subsequent suit must be same

which was directly and substantially in issue in the former suit,

C. That the matter in issue has been finally decided earlier.

D. That the matter in issue was decided by a Court of competent jurisdiction6.

If any one or more conditions are not proved, the principle of res judicata would not

apply. Where all the four conditions are proved, the Court has no jurisdiction to try the suit

thereafter as it becomes not maintainable and liable to be dismissed. For application of

principle of res judicata, existence of decision finally deciding a right or a claim

between parties is necessary7.

5
Sheodansingh v. Daryao Kunwar, AIR 1966 SC 1332.
6
Ibid.
7
http://www.lawteacher.net/free-law-essays/constitutional-law/res-judicata-and-code-of-civil-procedure-
constitutional-law-essay.php, last visited on 4th September 2015.

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 APPLICATION OF RES JUDICATA

The doctrine of Res judicata is a fundamental concept based on public policy and private

interest. It is conceived in the larger public interest which requires that every litigation must

come to an end. It, therefore, applies to civil suits, execution proceedings, arbitration

proceedings, taxation matters, industrial adjudication, writ petitions, administrative orders,

interims orders, criminal proceedings, etc8. Following cases illustrates the applicability of res

judicata:

Res Judicata in Execution Proceedings:

Explanation VII9 added in the section 11 has made it clear that not only general principle of

Res Judicata but also constructive Res Judicata apply to execution proceedings. The

provisions of the section are now applicable to a proceeding for the execution of a decree,

and references in the section to a suit, issue or former suit shall be construed as references

respectively to a proceeding for the execution of a decree, question arising in such proceeding

and a former proceeding for the execution of that decree. However, an application by decree-

holder to transfer certain papers to another Court for further execution is not an execution

application and its dismissal does not bar a fresh application. The Law Commission

suggested that the rule of Res Judicata ought to be connected to the circumstances of

processes in execution and autonomous incidents and prescribed insertion of Section 11a. As

opposed to embeddings Section 11a the Joint Committee of Parliament prescribed insertion

of Explanation to Section 11 and on the foundation of that report, Explanations VII and VIII

have been embedded by C.P.C. (Revision) Act, 1976. Segment 11of the present Code

rejecting Explanation VIII imagines that judgment in a previous suit might work as Res

Judicata if the Court which chose the suit was skilled to attempt the same by goodness of its
8
Supra at 1, pg 70.
9
Explanation VII, Code of Civil Procedure, 1908.

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monetary purview and the topic to attempt the consequent suit all things considered it is not

vital that the said Court may as well have had regional ward to choose the resulting suit10.

Constructive Res Judicata:

Explanation IV to Section 11 says that any matter which might or ought to have been made a

ground of defence or attack in the former suit shall be deemed to have been a matter

constructively in issue in that suit. Thus, if a matter which might and ought to have been

raised by the plaintiff in the former suit is not raised by him there he would be estopped from

raising the same question in a subsequent suit between the same parties. Similarly, where a

defendant did not raise all the objections which he might and ought to have raised in the

former litigation in controverting the plaintiffs claim, he will be barred from raising them in a

subsequent suit between the same parties. Where a matter has been actually in issue in a

former suit between the same parties, litigating under the same title, in a court competent to

try such subsequent suit, it must have been heard and decided for the purpose of constituting

res judicata but where a matter has been constructively in issue it could not from the very

nature of things be heard and decided. Nevertheless it will be deemed to have been heard and

decided against the party omitting to allege it, provided the conditions of res judicata are

complied with.

Writ Petitions and Res Judicata

In M.S.M sharma V. Dr. Shree Krishna11, , for the first time Supreme Court held that the

general principle of res judicata applies even to writ petition filed under Article 32 of the

Constitution of India. Thus, once the petition filed under Article 32 is dismissed by the court,

subsequent petition is barred.

10
http://www.jiarm.com/April2014/paper12252, last viewed on 4th September 2015.
11
M.S.M sharma V. Dr. Shree Krishna AIR 1960 SC 1186.

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Similarly a writ petition filed by a party under Article 226 is considered on merit as a

contested matter and is dismissed, the decision thus pronounced would continue to bind

unless it is otherwise modified or reversed in appeal or in other appropriate proceedings

permissible under the Constitution.

In the leading case of Daryao V. State of U.P12., the Supreme Court has placed the doctrine of

res Judicata on a higher footing, considering and treating the binding character of the

judgments pronounced by competent courts as an essential part of the rule of law.

Applicability of Constructive res Judicata in Writ Petition

The question arose for the first time before the Supreme Court in Amalgamated Coalfields

Ltd. V. Janapada Sabha13, , whether the concept of constructive res judicata can be applied in

writ petition or not. In Devilal Modi V. STO14, Supreme Court clarified the stand and said the

principle of constructive res judicata also applies in writ petition. A direct question, however

arose before the Supreme Court in State of U.P. V. Nawab Hussain15, , the Court held that

principle of constructive res judicata is applicable.

It should be noted that the principle of res judicata and constructive res judicata are held not

applicable in Habeas Corpus Petition by Supreme Court in Ghulam Sarwar V. Union of

India16, and in Lallubhai V. Union of India17, respectively18.

RES JUDICATA: DIFFERENCE FROM OTHER DOCTRINES

Res judicata and Res Sub Judice

12
Daryao V. State of U.P AIR 1961 SC 1457.
13
Amalgamated Coalfields Ltd. V. Janapada Sabha AIR 1964 SC 1013.
14
Devilal Modi V. STO AIR 1965 SC 1153.
15
State of U.P. V. Nawab Hussain AIR 1977 SC 1680.
16
Ghulam Sarwar V. Union of India AIR 1967 SC 1335.
17
Lallubhai V. Union of India AIR 1981 SC 728.
18
http://www.legalservicesindia.com/article/article/res-sub-judice-res-judicata-and-constructive-res-judicata ,
last visited in 4th September 2015.

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 1. Res judicata relates to a matter already decided, i.e. a matter on which judgment has

been pronounced, whereas res. Subjudice (laid down in Section 10) relates to matter

which is pending for judicial enquiry.

2. Res subjudice bars the trial of a suit in which the matter directly and substantially in

issue is pending judicial decision, in a previously instituted suit by staying the trial of

the latter suit, whereas res judicata bars altogether the trial of a suit or an issue in

which the matter directly and substantially in issue has already been adjudicated upon

in a previous suit.

3. The object of res subjudice is to prevent Courts of a concurrent jurisdiction from

simultaneously entertaining and adjudicating upon two parallel litigations in: elute

causeof action, same subject-matter and same relief whereas the object of Res judicata

is that there should be an end to litigation and that no man should be vexed twice over

for the same cause19.

CONCLUSION

The Doctrine of Res Judicata can be understood as something which restrains the either party

to move the clock back during the pendency of the proceedings. The extent of Res Judicata is

19
Supra at 1, pg 75.

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very-very wide and it includes a lot of things which even includes Public Interest Litigations.

This doctrine is applicable even outside the Code of Civil Procedure and covers a lot of areas

which are related to the society and people. The scope and the extent have widened with the

passage of time and the Supreme Court has elongated the areas with its judgments. Some

problems still persist but the courts and legislature are trying to deal with these problems.

The doctrine of res sub-judice prevents the courts to run multiple parallel cases with same

parties, subject matter and cause of action in multiple competent courts. By this rule stated in

section 10 of the Civil Procedure Code,1908 no one can file a suit in a court which is already

under trial in another court. By this rule the multiplicity of suites can be prevented and the

courts can give remedy faster. And this remedy can only be given by following the conditions

given in section 10.

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 BIBLIOGRAPHY

Cases

Amalgamated Coalfields Ltd. V. Janapada Sabha AIR 1964 SC 1013..................................................7

Daryao V. State of U.P AIR 1961 SC 1457...........................................................................................7
Devilal Modi V. STO AIR 1965 SC 1153..............................................................................................7
G.N.Nayak v. Goa University, AIR 2002 SC 790..................................................................................8
Ghulam Sarwar V. Union of India AIR 1967 SC 1335..........................................................................7
K.Ethirajan v. Lakshmi, AIR 2003 SC 4295..........................................................................................8
Lallubhai V. Union of India AIR 1981 SC 728......................................................................................7
M.S.M sharma V. Dr. Shree Krishna AIR 1960 SC 1186.....................................................................6
Sheodansingh v. Daryao Kunwar, AIR 1966 SC 1332..........................................................................4
Sita Ram v. Amir Begum (1886) 8 ALL 324........................................................................................11
State of U.P. V. Nawab Hussain AIR 1977 SC 1680.............................................................................7
Statutes

Explanation VII, Code of Civil Procedure, 1908...................................................................................5

Treatises

Black’s Law Dictionary, 9th ed...............................................................................................................1

C.K Takwani, “Code of Civil Procedure”, 7th ed. .................................................................................1
Mulla, “Code of Civil Procedure”, 15th ed. 2012...................................................................................3
Web Links

http://legalperspectives.blogspot.in/2010/03/constructive-res-judicata-law-revisited............................3
http://studentlawnotes.blogspot.in/2012/12/res-judicata........................................................................2
Articles

http://www.jiarm.com/April2014/paper12252.......................................................................................6
http://www.legalservicesindia.com/article/article/res-judicata-a-brief-study.........................................1
http://www.legalservicesindia.com/article/article/res-sub-judice-res-judicata-and-constructive-res-
judicata..............................................................................................................................................7

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