DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY

CIVIL PROCEDURE CODE

COURT COMPETENT TO TRY: SECTION-11

Submitted to: Submitted by:

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Mr. Vipul Vinod Laraib Aqdus

Assistant Professo Semester: IVth

(Law) Enrollment No.-160101095

ACKNOWLEDGEMENT

Learning is something that continues all throughout the life & it starts at the zest of the
person playing the role of the teacher who imparts his/her knowledge to you. It is
under the guidance of a teacher that a student grows & learns to expand his/her
horizons. As a child, you acknowledged everything you accomplished, and as you
grow older and more sophisticated, you acknowledge only major achievements. Such
achievements can be reached to only with the kind showering of the teacher’s help.

And hence, the following endeavour is also attributed to my teacher, Mr. Vipul Vinod,

Faculty, Law, who guided me through the path of this attainment.

Nothing can also demean the contribution of my family & friends in this journey &
thus, moving ahead without thanking them will only render the study less meaningful.
All ends well only when surroundings are constructive & people around are
supportive. It therefore becomes imperative to owe the gratitude towards all those in
Dr. Ram Manohar Lohiya National Law University, who made the study possible for
me.

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 TABLE OF CONTENT

INTRODUCTION.......................................................................................................... 5
NATURE OF SECTION-11..........................................................................................5
APPLICABILITY OF DOCTRINE OF RES JUDICATA...........................................6
COMPETENT COURT ...............................................................................................9
CONCLUSION............................................................................................................ 11
BIBLOGRAPHY..........................................................................................................13

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4
 LIST OF ABBREVIATIONS

1. AIR All India Reporter

2. All Allahabad Law Journal

3. IA Indian Appeals (Privy Council)

4. ILR Indian Law Reports

5. SCC Supreme Court Cases

6. SCR Supreme Court Reports

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INTRODUCTION

Under Code of Civil Procedure (in short CPC), Section 11 incorporates the principle
of res judicata which reads 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”.

Res judicata includes two related concepts: claim preclusion, and issue
preclusion (also called collateral estoppel), though sometimes res judicata is used
more narrowly to mean only claim preclusion. Claim preclusion focuses on barring a
suit from being brought again on a legal cause of action that has already been finally
decided between the parties. Issue preclusion bars the re-litigation of factual issues
that have already been necessarily determined by a judge or jury as part of an earlier
claim. It is often difficult to determine which, if either, of these apply to later lawsuits
that are seemingly related, because many causes of action can apply to the same
factual situation and vice versa. The scope of an earlier judgment is probably the most
difficult question that judges must resolve in applying res judicata. Sometimes merely
part of a subsequent lawsuit will be affected, such as a single claim being struck from
a complaint, or a single factual issue being removed from reconsideration in the new
trial.

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NATURE OF SECTION-11

The Doctrine of Res Judicata strives to strike a balance between the two largely
separated poles. One pit assures an efficient judicial system that renders final
judgments with certainty and prevents the inequity of a defendant having to defend
the same claim or issue of law repeatedly. On the other hand, it protects the plaintiff's
interest in having issues and claims fully and fairly litigated.

The basic point involved in the Nature of the doctrine of Res Judicata is
that the doctrine tries to bring in natural and fair justice to the parties and that too by
barring the other party to file a multiple number of suits either for justice or for
harassing the other party.

Therefore, the nature of the doctrine of Res Judicata is to enable the

Courts deliver the justice and then to dismiss or freeze the other active suits which are
of the very same nature although is at different stage. Such a role enables the Court to
dismiss the matter from its jurisdiction and also the jurisdiction of the other Courts
which are at the same level.

Applicability of Doctrine of Res Judicata

Following conditions must be proved for giving effect to the principles of res judicata
under Section 11— (i). that the parties are same or litigating under same title, (ii). that
the matter directly and substantially in issue in the subsequent suit must be same

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which was directly and substantially in issue in the former suit, (iii). that the matter in
issue has been finally decided earlier, and (iv). that the matter in issue was decided by
a Court of competent jurisdiction.

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 necessary.

Competent court

One of the condition of res judicata is that the court which decided the former suit
must have been a court competent to try the subsequent suit. Thus, the decision in a
previous suit by court not competent to try the subsequent suit will not operate as res
judicata.

Types of court

In order that a decision in a former suit may operate res judicata, the court which
decided that suit must have been either :

A- a court of exclusive jurisdiction or

B- a court of limited jurisdiction or

C- a court of concurrent jurisdiction

Court of exclusive jurisdiction:

A plea of res judicata can successfully be taken in respect of judgements of courts

of exclusive jurisdiction, like revenue courts, land, acquisition courts,
administration courts, etc. If a matter directly and substantially in issue in a former
suit has been adjudicated upon by a court of same exclusive jurisdiction, such
adjudication will bar the trial of the same matter in a subsequent suit in an
ordinary civil court.

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 Court of limited jurisdiction

A decision on an issue heard and finally decided by a court of limited jurisdiction

will also operate as res judicata in a subsequent suit irrespective of the fact that
such court of limited jurisdiction was not competent to try the subsequent suit.
The
expression “ court of limited jurisdiction” has been interpreted differently by diff
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HC. In Nabin Majhi v Tela Majhi , the HC of Calcutta held that courts of limited
jurisdiction are courts other than ordinary civil courts, such as revenue courts.And
courts of limited pecuniary jurisdiction cannot be said to be a court of limited
jurisdiction.

2
On the other hand, in P.V.N Devoki Amma v PVN Kunhi Raman , the HC of
Kerela did not agree with the calcutta view in Nabhi case and observed that the
term “ a court of limited jurisdiction” is wide enough to include a court whose
jurisdiction is subject to pecuniary jurisdiction and it will not be right to interpret

1 AIR 1978 CAL 440

2 AIR 1980 KER 230

the said expression as connoting inly courts other than ordinary civil courts. Such
a narrow and restricted interpretation is not warranted by the words used by
parliaments. It is submitted that the view taken by the HC of kerela in Devoki case
is correct and preferable to the one taken by the HC of Calcutta in Nabhi case, the
point is however concluded by a decision of the SC in Sulochana Amma v

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Narayanan Nair

Court of concurrent jurisdiction

Where the court which decided the former suit was a court of concurrent
jurisdiction having competence to try the subsequent suit, the decision given by it

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 would operate as res judicata in a subsequent suit. Concurrent jurisdiction means
concurrent as regards the pecuniary limit as well as the subject matter of the suit.

“ Competency” in Sec 11 has no reference to territorial jurisdiction of the court.

As seen above, the ambit and scope of explanation 8 has been interpreted
differently by different HC. In Nabhi case, it was contended that a court of Munsif
by reason of its limited pecuniary jurisdiction can be said to be a part of limited
jurisdiction and hence its decision would operate as res judicata in a subsequent
suit instituted in the court of a subordinate judge.

Negativing the contention and interpreting explanation 8 in the light of the

subsequent provision( sec11) the court observed:

“One of the conditions for the applicability of sec 11 is that the court in which the
former suit was instituted must e competent to try and subsequent suit if the
former courts is unable to try the subsequent suit as it is beyond its pecuniary
jurisdiction, the decision of the former court will not be red judicata in the
subsequent suit. If the legislature had really intended to remove the condition
retaining to the competency of the former court, in that case it would have
removed the same from the section itsef.in the face of provision of sec 11,
retaining the said condition for the applicability of res judicata, that the former

3 (1994) 2 SCC 14

court must be competent to try the subsequent suit, it is difficult for us to accept
the interpretation of explanation 8 as suggested on behalf of the appellant”.

The HC of Kerela, however took a contrary view in PVN Devoki Amma v PVN
Kunhi Raman disagreeing with the ratio laid down in Nabhin case and keeping in
mind the object of enacting explanation 8, the court concluded

“In our opinion, the expression’ a court of limited jurisdiction is wide enough include
a court whose jurisdiction is subject to a pecuniary limitation and it will not be right
to interpret the said expression as connoting only courts than ordinary civil courts.
Such a narrow and restricted interpretation is not warranted by the words used by
parliament. The Statement of Objects and Reasons for the Bill which was
subsequently enacted as Amending Act 104 of 1976 and the report of the Joint Select
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Committee, which effected some substantial changes in the Bill as originally drafted,
make it abundantly clear that the intention underlying the introduction of Explanation
VIII was that the decisions of the Courts of limited jurisdiction should operate as res
judicata in a subsequent suit although the Court of limited jurisdiction may not be
competent to try such subsequent suit "In our opinion the object and purpose
underlying the introduction of Explanation VIII was much wider, namely, to render
the principle res judicata fully effective so that issues heard and finally decided
between the parties to an action by any Court competent to decide such issues should
not be be reagitated by such parties or persons claiming through them in a
subsequent
litigation”.

It is submitted that the above observations in Devoki Amma lay down the correct
proposition of law. The underlying object of the amendment and insertion of
Explanation VIII is to avoid multiplicity of suits. It is, no doubt, true that Parliament
has not deleted from Section 11 the words "in a court competent to try such
subsequent suit or the suit in which such issue has subsequently been raised" but the
section and the explanation must be read harmoniously. If it is not so read, the primary
object of enacting Explanation VIII would be defeated, inasmuch as a party by adding
some property or increasing the value thereof from time to time may go on instituting
suits after suits, deliberately and successfully avoiding the decision against him to
operate as res judicata. It would encourage endless litigation.

It is further submitted that it would have been better had Parliament, in view of
insertion of Explanation VIII by the Amendment Act of 1976, deleted the words "a
court competent to try such subsequent suit or the suit in which such issue has been
subsequently raised But it is settled law that an explanation to a section in a given
case, instead of serving the traditional purpose of explaining a section, may work as an
independent provision. Ultimately it is the intention of the legislature which is
paramount and the mere use of a label cannot control or deflect such intention.

Moreover, such a construction would result in an anomalous situation. If a matter is

decided by a court of limited jurisdiction, Explanation VIII would apply and such
decision would operate as res judicata in a subsequent suit. But if it is decided by a
court of limited pecuniary jurisdiction, the decision would not attract Section 11. This
is really absurd. Further, such an interpretation would be against the basic principle
underlying the doctrine of res judicata which is reflected in the well-known maxim

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that "larger public interest requires that all litigation must, sooner than later, come to
an end"

Finally, it may result in conflicting decisions by the same officer. For instance, a
decree passed by a Rent Controller will operate as res judicata but decree passed by a
Civil judge or a Munsif will not be barred by that doctrine though the same officer
might have decided both the cases.

Difference between Res judicata and Res Sub-judice

Doctrine of Res Sub-Judice as dealt in Sec 10 of the Code of Civil

procedure, deals with stay of civil suits. 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. Wheresas
Doctrine of Res Judicata as dealt in Sec 11, on the other hand, relates to a matter
already adjudicated upon. It bars 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.

The object of the rule contained in section 10 is to prevent courts 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 the
same relief. The policy of law is to confine a plaintiff to one litigation, thus obviating
the possibility of two contradictory verdicts by one and the same court in respect of
4 the same relief. The object of this
section is at outset different from that of Sec 11 i.e., of the Doctrine of
Res Judicata, but ultimately the final object of both the doctrines, i.e., to
reduce number and prevent duplicacy of litigations.

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The doctrine of Res Sub-judice intends to protect a person from multiplicity of
proceedings and to avoid a conflict of decisions. It also aims to avert inconvenience to
5 the parties and gives effect to the
rule of Res Judicata.

The major difference between these two sections is that the Doctrine of Res Judicata
under Sec.11 bars the institution of suit concerning same subject matter between same
parties but the Doctrine of Res Sub judice under sec.10 does not bar the institution of
a suit, but only bars a trial, if certain conditions are fulfilled. The subsequent suit,
therefore, cannot be dismissed by a court, but is required to be stayed whereas in case
of Res Judicata, the subsequent suit is liable to be dismissed.

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

4 5
Balkishan v. Kishan Lal, ILR (1889) 11 All. 148 (FB).
S. P. A. Annamalay Chetty v. B. A. Thornhill, AIR 1931 PC 263.

Thus, the doctrine of Res Judicata enacts that once a matter is finally
decided by a competent court, no party can be permitted to reopen it in a subsequent
litigation. In the absence of such a rule there will be no end to litigation and the parties
would be put to constant trouble, harassment and expenses. This doctrine of res
judicata is a fundamental concept based on public policy and private interest. It is

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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, writ petitions, administrative orders, interim orders,
criminal proceedings, etc. An ordinary litigation being a party or claiming under a
party of a former suit cannot avoid the applicability of section 11 of CPC as it is
mandatory except on the ground of fraud or collusion as the case may be.

Res Judicata does not restrict the appeals process, which is considered a
linear extension of the same lawsuit as the suit travels up (and back down) the
appellate court ladder. Appeals are considered the appropriate manner by which to
challenge a judgment rather than trying to start a new trial. Once the appeals process
is exhausted or waived, Res Judicata will apply even to a judgment that is contrary to
law. There are limited exceptions to Res Judicata that allow a party to attack the
validity of the original judgment, even outside of appeals. These exceptions usually
called collateral attacks are typically based on procedural or jurisdictional issues,
based not on the wisdom of the earlier court's decision but its authority or on the
competence of the earlier court to issue that decision.

Therefore, Res Judicata in a nut shell is a judicial concept wherein the Courts do not
allow a petition to be filed in the same or to the other Court for the doctrine of Res
Judicata would apply and the party would not be allowed to file the petition or to
continue the petition (as the case may be).

BIBLOGRAPHY

th
 C.K. Takwani, Civil Procedure, 7 Edition, 2013, Eastern Book Company,
Lucknow 

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• Dr.T.P.Tripathi, The Code of Civil Procedure, 2nd Edition, 2008, Allahabad
Law Agency. 
 rd
• M.P.Jain, The Code of Civil Procedure, 2007, 3 Edition, Wadhwa and
Company. 

• Sir D.F. Mulla, The Code Of Civil Procedure, 7th Edition, Volume 1, Lexis
Nexis Butterworths. 

• B.M.Prasad, The Code Of Civil Procedure, 18th Edition, 2011, Volume 1,
Lexis Nexis Butterworths. 

• Basu, The Code of Civil Procedure, 10th Edition, 2007, Volume 1, Ashoka
Law House. 

• Karia, Lata, 2007, “Doctrine of Res-judicata”, thesis PhD, Saurashtra 

• University. Available at:

< http://etheses.saurashtrauniversity.edu/id/eprint/736>.

• Arnav, Res Judicata - A Brief Study, published on August 27, 2013, 4:55 pm,
available at:< res-judicata-a-brief-study-1498-1.html> 
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