MAHIMA BALAJI !

CPC Notes

INTRODUCTION AND HISTORY

- While the function of substantive laws is to confer substantive legal rights or status, or define legal duties.
The function of procedural laws are to provide machinery or the manner in which the legal rights or status
and legal duties may be enforced or recognised by a Court of law/tribunal.
- Procedural law is an adjunct to substantive law, and the two are complementary.
- First uniform civil procedure code was enacted in 1859, but was not made applicable to Supreme Courts.
In 1908 the CPC was enacted and amended by two key amendments of 1951 and 1956.
- Certain considerations with which the CPC was forwarded — 

(a) fair trial and principles of natural justice 

(b) effort to expedite the disposal of civil suits and proceedings so justice isn’t delayed

(c) procedure not to be complicated and ensure fair deal to power sections
- 1976 Amendment 

(a) Res Judicata made more effective 

(b) Power to transfer proceedings from one HC to another given to the SC. 

(c) Freedom from attachment of a portion of salary to all salaried employees. 

(d) Provision of giving notice under Section 80 before institution of a suit against the government or a
public officer is made less stringent. 

(e) Restrictions on the right to appeal and recision 

(f) Scope of summary trials widened 

(g) Important relief provisions to poorer persons
- 1999 and 2000’s Amendments 

(a) In several matters like summons, written statements, amendment of pleadings, document production,
etc., time limit prescribed. 

(b) Provision for dispute settlement 

(c) Adjournments have been restricted 

(d) Provision of recording evidence by Court Commissioner 

(e) Provision for filing appeal. 

(….)

- The object of the code, as stated in the Preamble, is to consolidate and amend the laws relating to the
procedure of Courts of Civil Judicature.
- Thus it is a consolidated Code collecting all laws relating to procedure to be adopted by civil courts.
Designed to facilitate justice and further its ends.
- While the Code is exhaustive on matters specifically dealt but it, it is not exhaustive on points it does not
specifically deal with. In such matters, the court has the power to act according to principles of justice,
equity and good conscience.
- There must be a harmonious construction between the Orders/Rules and the Sections. In case of conflict,
the latter will prevail.

SCOPE OF CPC — JURISDICTION OF CIVIL COURTS

- Jurisdiction (juris + dicto = I speak by the law)

- It means the power or authority of a court of law to hear and determine a cause or a matter.
- It is the power to entertain, deal with and decide a suit, action, petition or other proceeding. In other
words, jurisdiction is the authority which a court has to decide matters that are litigated before it, or to
take cognisance of matters presented in a formal way for it’s decision.
- If a Court has no inherent jurisdiction, neither acquiescence, waiver nor estoppel can create it. A defect of
jurisdiction strikes at the authority of a court to pass a decree, where a decree passed by a court without
jurisdiction is a coram non judice.
- Conversely, where a court has jurisdiction to decide a dispute, the same cannot be taken away or ousted by
consent by the parties. An agreement to oust absolutely the jurisdiction of the court would be unlawful and
void and against public policy. But if two or more courts have jurisdiction to try the suit, parties may
select a particular forum and exclude the other forums.
- Generally the jurisdiction of a court should be decided on the basis of a case put forward by the plaintiff in
his plaint and not by the defendant in his written statement.
MAHIMA BALAJI !2
- Jurisdiction of a court, tribunal or authority may depend upon fulfilment of certain conditions or existence
of a particular fact. 


KINDS OF JURISDICTIONS

(a) Civil (disputes of a “civil nature” and Criminal

(b) Territorial or Local
(c) Pecuniary — certain limits. HC and District courts have no limitations.
(d) Jurisdiction as to subject matter — e.g., only District/Civil judge can hear matters on divorce and
insolvency cases
(e) Original and appellate
(f) Exclusive and concurrent — exclusive gives sole power to one court or tribunal to try, deal with and
decide a case. No other court can render a judgement.
(g) General and special — latter is particular and limited causes.
(h) Legal and equitable — Former is exercised by Common Law Courts in England; while latter is Courts of
Equity. Indian Courts are both.
(i) Municipal and foreign — Domestic vs. Foreign country
(j) Expounding and expanding —— former is define, clarify and explain jurisdiction; while latter is enlarge
or extend jurisdiction. 

Courts duty to expound, not expand.

SUBJECT MATTER OF CPC AND JURISDICTION OF CIVIL COURTS.

Section 9.
- An enabling provision
- 2 conditions to be fulfilled for a Civil Court to try a suit: (i) suit must be of civil nature; and (ii)
cognisance of such a suit should not have been impliedly barred. 


SUIT OF A CIVIL NATURE:

- Civil relates to private rights and remedies of a citizen as distinguished from civil and political
rights.While nature relates to certain fundamental qualities
- ‘Civil nature’ is wider than civil proceedings.
- Civil nature suits are where the principle question relates to the determination of a civil right and
enforcement thereof. Width of civil stretched by ‘nature’
- Not the status of parties to the suit, but the subject matter

COGNISANCE OF SUIT SHOULD NOT BE BARRED, EXPRESSLY OR IMPLIEDLY
- Expressly barred: 

Barred by an enactment for the time-being in force. 

— Such must be by a competent legislature to bar jurisdiction of civil courts with respect to a particular
class of suits of a civil nature, provided that it doesn’t contravene constitutional provisions.
- Impliedly barred: 

When a suit is barred by general principles of law. 

— Where a specific remedy is given by a statute, which thus deprives a person who insists upon a remedy
of any other form than given by the statute

— Where an Act creates an obligation and enforces it’s performance in a specified manner, the
performance cannot be enforced in any other manner. 

— Similarly some suits are barred on the grounds of public policy where they might be injurious to public
benefit. 


PRESUMPTION OF JURISDICTION
- In dealing whether a civil court’s jurisdiction to entertain a suit is barred or not, presumption should be
made in favour of jurisdiction.
- Exclusion of jurisdiction of a civil court to entertain civil causes should not be inferred unless statute
contains provisions to that effect, or lends to a necessary and inevitable implication of that nature.

BURDEN OF PROOF
- Party seeking ousting of jurisdiction of a civil court to establish it.
- Statute ousting jurisdiction must be strictly construed — words, purpose of enactment, scheme of
provisions.
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- Civil Court has the inherent power to decide the question of it’s own jurisdiction. 

LIMITATIONS: EXCLUSION OF JURISDICTION

Dhulabhai vs. State of MP

(1) Where the statute gives a finality to the orders of the special tribunals the civil court's jurisdiction must
be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a
suit. Such provision, however, does not exclude those cases where the provisions of the particular Act
have not been complied with or the statutory tribunal has not acted in conformity with the fundamental
principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the an examination of the scheme of the particular
Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not
decisive to sustain the jurisdiction of the civil court. 

Where there is no express exclusion the examination of the remedies and the scheme of the particular
Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In
the latter case, it is necessary to see if the statute creates a special right or a liability and provides for
the determination of the right or liability and further lays down that all questions about the said right
and liability shall be determined by the tribunals so constituted, and whether remedies normally
associated with actions in civil courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals
constituted under that Act. Even the High Court cannot go into that question on a revision or reference
from the decision of the Tribunals. [Body set up under a statute cannot question validity of it]
(4) When a provision is already declared unconstitutional. or the constitutionality of any provision is to
be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is
clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a
suit.
(5) & (6) relate to facts of case
(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions
above set down apply. [Presumption that Civil Court has jurisdiction]

General Principles as to Jurisdiction of Civil Courts:

A. Civil Court has jurisdiction to try all suits of civil nature unless their cognisance is barred — expressly or
impliedly,
B. Consent can neither confer nor take away jurisdiction
C. Decree passed by a Court without jurisdiction is nullity and validity thereof can be challenged at any
stage of the proceedings, in execution and collateral.
D. There is a distinction between want of jurisdiction and irregular exercise thereof.
E. Every Court has inherent power to decide question of it’s own jurisdiction.
F. Jurisdiction of a Court depends upon averments made in plaint and not defence’s written statement.
G. For deciding jurisdiction, the substance of a matter is important, not its form.
H. Presumption should be made in favour of jurisdiction of a civil court.
I. Statute ousting jurisdiction must be strictly construed.
J. Burden of proof of exclusion of jurisdiction is on party asserting it.
K. Where jurisdiction of civil court is barred, it can still decide whether provisions of an Act have been
complied with or whether an order was passed dehors the provisions of law.
MAHIMA BALAJI !4

RES SUBJUDICE

Section 10. [Stay of Civil Suits: Res Subjudice]

- No Court to proceed with trial of any suit in which matter in issue is directly and substantially in issue in a
previously instituted suit between the same parties and the court before the previously instituted suit is
pending is competent to grant the relief sought
- The rule applies to trial of a suit and not the institution. Does not preclude passing of interim orders like
injunctions, stay, appointment of receiver, etc. 

[Indian Bank vs. Maharashtra State Coop].

OBJECT OF THE SECTION

- The rule contained is to prevent Courts of concurrent jurisdiction simultaneous entertaining and
adjudicating on two parallel litigations in respect of the same cause of action, same subject matter, and
same relief.
- Object is to confine the plaintiff to one litigations, obviating the possibility of two contradictory verdicts
by one and the same court in respect of the same relief.
- Application is only insofar that the matter is ‘directly and substantially in issue in a previously instituted
suit’ — thus the matter in controversy is to be the same.

CONDITIONS OR ELEMENTS FOR APPLICABILITY OF SECTION 10

1) There must be 2 suits — one previously instituted and the other subsequent instituted
2) Matter in issue in the subsequent suit is ‘directly and substantially’ in issue in the previous suit
3) Both suits must be in between the same parties or their representatives
4) Previously instituted suit must be pending in the 

(a) same Court in which the subsequent suit is brought; 

(b) or in any other Court in India; 

(c) or in any Court beyond the limits of India, established or continued by the Central Government or
before the Supreme Court.
5) Court in which the previous suit is instituted must have the jurisdiction to grant the relief claimed in the
subsequent suit.
6) Such parties must be litigating under the same title in both the suits.

- Essential that the subject-matter in controversy must be the same between the previous and subsequent
suit
- Mere common grounds would not be sufficient
- Order staying proceedings in the subsequent suit can be made at any stage.
- Test is to see: if the decision in a previously instituted suit would operate as res judicata in the subsequent
suit. If so, the subsequent suit must be stayed.
- If a suit is pending in a foreign Court, then there is no bar on the power of the Indian court to try a
subsequently instituted suit.
- Note that there is also an inherent power to stay under Section 151, CPC, where the Court can stay a suit
to achieve ends of justice — irrespective of where Section 10 of the Code doesn’t strictly apply.

CONTRAVENTION*
- A decree passed in contravention to Section 10 is no a nullity. Therefore cannot be disregarded in
execution proceedings.
- It is only the trial and not the institution of a subsequent suit which is barred.
- Thus, this is a rule of procedure which can be waived by a party. Hence, if parties waive their right and
ask the Court to proceed with the subsequent suit, then cannot afterwards challenge the validity of the
subsequent proceedings.
MAHIMA BALAJI !5

RES JUDICATA

Section 11 [a matter adjudged // a rule of conclusiveness and avoidance of vexatious litigation]

- Deals with the rule of conclusiveness of a judgement — as to points decided of fact, law, or fact and law,
in every subsequent suit between the same parties.
- When a matter is 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 would be no end to litigation.
- Decided by two parties in one suit/proceeding, and the decision is final. Either because there no appeal
was taken to a higher court, or because appeal was dismissed, or o appeal lies.
- In such a case, neither party will be allowed in a future suit or proceeding between the same parties to
canvass the matter again. 


ACTUAL RES JUDICATA:

It means a matter actually resolved by Court, between the parties in earlier suit cannot be reopened through
subsequent suit. In-other words an issue has been alleged by one party and either denied or admitted,
(expressly or impliedly) by other party in earlier suit, second suit in respect of the same matter can not be
filed, and if any is filed, the same would be hit by actual Res Judicata.

CONSTRUCTIVE RES JUDICATA:

It 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 that 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 plaintiff 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.

OBJECT / 3 MAXIMS OF RES JUDICATA

(i) No man should be vexed twice for the same cause
(ii) It is in the interest of the State that there should be an end to litigation
(iii) A judicial decision must be accepted as correct.

RES JUDICATA vs. OTHERS

A. RES JUDICATA DIFFERS FROM RES SUB JUDICE

1. The doctrine of Res Judicata is contained in section (11) of C.P.C, which provides when and how it can
apply, while the doctrine of Res Subjudice is contained in section (10) of C.P.C, which provides when and
how it can apply.
2. In Res Judicata the Court shall not try at all a case, which has previously tried, while in Res Subjudice the
Court shall not proceed with a case, in-respect of which a suit is already pending.
3. Res judicata deals with cases, which have already been decided by a Court of competent jurisdiction, but
Res Subjudice deals with cases which are pending before the Court of competent jurisdiction.
4. Res Judicata prohibits second trial of the same dispute between same parties, while Res Subjudice
prohibits proceedings of two parallel suits between same parties.

B. RES JUDICATA AND LIS PENDENS

- Lis Pendens is an aspect of the rule of Res Judicata. Where the former is laid down under Section 52,
TPA.
- Where a conflict between the two arises, res judicata will prevail. I.e. when a judgement is duly
pronounced by a competent court in regard to the subject matter of the suit in which doctrine of lis
pendens applies — the decision would operate as res judicata and would bind not only the parties, but also
the transferres pendente lite.

C. RES JUDICATA AND WITHDRAWAL OF SUIT.

- O. 23/Rule I deals with withdrawal of suits. It enacts where P withdraws suit or abandons his claim
without leave of the Court, he will be precluded from instituting a fresh suit w.r.t the same cause of action.
- In res judicata, the matter is heard and finally decided between the parties; in the latter, the P withdraws or
abandons his claim before it is adjudicated on merits.

D. RES JUDICATA AND ESTOPPEL

- Res judicata is estoppel by verdict/judgement.
MAHIMA BALAJI !6
- Constructive Res Judicata is a rule of estoppel.
S.115 Estoppel.
—When one person has, by his declaration, act or omission, intentionally caused or permitted
another person to believe a thing to be true and to act upon such belief, neither he nor his
representative shall be allowed, in any suit or proceeding between himself and such person or his
representative, to deny the truth of that thing.

Differences:
(i) Res judicata flows from decision of Court, estoppel flows from act of parties
(ii) Res judicata based on public policy; while estoppel is based on equity
(iii) Res judicata ousts jurisdiction of a court; estoppel is a rule of evidence and shuts the mouth of a party.
(iv) Res judicata prohibits a man averring the same thing twice; estoppel prevents him from saying one this
at one time and the opposite at another.
(v) Res judicata presumes conclusive truth of decision in a former suit; estoppel prevents a party from
denying what is called the truth.

E. RES JUDICATA AND ISSUE ESTOPPEL

Section 300(1), CrPC 


A person who has once been tried by a Court of competent jurisdiction for an offence and convicted
or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable
to be tried again for the same offence, nor on the same facts for any other offence for which a
different charge from the one made against him might have been made under sub- section (1) of
section 221, or for which he might have been convicted under sub- section (2) thereof.

- Person tried by a court of competent jurisdiction for an offence and convicted for such cannot be tried
again for the sae so long as acquittal/conviction operates.

Section 11, CPC on the other hand enacts that once the matter is decided by a competent court, no party can
be allowed to re-open it in subsequent litigation. Principle is applicable to criminal proceedings and it is not
permissible in the subsequent stage of the same proceedings or in subsequent proceeding to try a person for
an offence, for which he has already been acquitted/convicted.

F. RES JUDICATA AND STARE DECISIS

While the former is a ‘thing adjudicated’ the latter is ‘to stand by decided cases’ — while they are members
of the same family, the former is based on conclusiveness of judgements; and the later rests on legal
principles.
Res judicata binds parties and privies; while stare decisis operates between strangers and also binds courts.

Res Judicata and O.2 R.2

While the former refers to P’s duty to being forward all grounds of attack in support of his claim, the latter
requires P to claim all reliefs flowing from the case cause of action.
Further Res Judicata applies to P & D, while the latter refers only to P and bars a suit.

Res Judicata is mandatory and touches the jurisdiction of a court to try proceedings. Even if concession is
made, it will not bind a party is res judicata applies. However, it is not an exhausting provision. It applies to
civil suits. The principles of Section 11 can be extended to cases which do not fall strictly within the letter of
the law. Is it conceived in the larger public interest which requires that litigation must, sooner than later,
come to an end.
— It should be applied liberally due to the same.

Once again, like res subjudice, res judicata can be waived as it is procedure. Similarly, a Court can deny this
plea on grounds that the it did to address questions property in proceedings earlier.

CONDITIONS OR ELEMENTS FOR APPLICABILITY OF SECTION 11

I. Matter directly and substantially in issue in the subsequent suit or issue, must be the same in which it
was directly an dsubstantially in issue either actually (Expl. III) or constructively (Expl. IV) in the
MAHIMA BALAJI !7
former suit (Expl. I) 

— Expl. VII is to be read with this condition.
II. Former suit must have been a suit between the same parties or between parties under whom they, or any
of them claim. 

— Expl. VI to be read with this condition.
III. Such parties must have been litigating under the same title in the former suit.
IV. Court which decided the former suit must be a court competent to try the subsequent suit or the suit in
which such issue is subsequently raised 

— Expl. II and VIII to be read with this condition.
V. Matter directly and substantially in issue in the subsequent suit must have been heard and decided by the
court in the former suit. 

— Expl. V to be read with this condition.

I. Matter directly and substantially in issue in the subsequent suit or issue, must be the same in which
it was directly and substantially in issue either actually (Expl. III) or constructively (Expl. IV) in
the former suit (Expl. I) 

— Expl. VII is to be read with this condition.

A. General and Meaning

• ‘Matter in issue’— may be issue of fact, issue of law, or one of mixed law and fact.
• ‘Matter in issue’ means the rights litigated between the parties. The facts on which such right is claimed,
and the law applicable to the determination.

B. Directly and substantially in issue, actually (Expl. III)

- Directly has been used in the sense of being immediately or at once. In contradistinction to ‘collaterally or
incidentally.’ Fact cannot be directly in issue if the judgement is about whether the fact exists or does not
exist.
- Substantially means essentially or materially. It is something short of certainly but more than mere
suspicion — in effect, though not in express terms.
- Whether or not a matter is directly and substantially an issue would depend upon whether a decision of
such an issue would materially affect the decision of a suit. The question thus is based on the plaint,
written statement, issues and judgement. The question should be decided on the facts of each case.

C. Matter constructively in issue, actually (Expl. IV)

- Constructively in issue, if a matter ‘might and ought’ to have been made a ground of defence/attack in
former suit.
- Expl IV is a deeming provision, which lays down that any matter which might and ought to have been
made a ground of defence or attack in the former suit, but wasn’t, shall be deemed to have been a matter
directly and substantially in issue in such suit.
- Principle is that where parties had the opportunity. that should have been taken to be the same thing as if
the matter had been controverted and decided. A party is bound to bring forward his whole case. 


> Constructive Res Judicata.

Artificial form of res judicata, and provides that if a plea could have been taken and wasn’t, one cannot be
permitted to take that plea against the same party in a subsequent proceeding w.r.t the same subject mater.

> Might and Ought.

- If the P or D fails to take up a ground that they ‘might’ and ‘ought’ to have taken, it would be treated as
raised and decided.
MAHIMA BALAJI !8
- Might presupposes that party affected had knowledge of grounds of attack; while ought compels party to
take such ground. They must be read in conjunction.
- ‘Ought’ depends on the facts of each case.
D. Matter collaterally or incidentally in issue
- Decisions collateral or incidental to the main issues will not operate as res judicata.
- A collateral or incidental issue means one which is ancillary to the direct and substantive issue. No relied
is claimed and yet it is put in issue to enable a court to adjudicate upon the matter which is directly and
substantially in issue.
- A matter is directly and substantially in issue if it is necessary to decide upon it in order to adjudicate the
principle issue, and if the judgement is based upon the decision.
- A matter is collaterally or incidentally in issue if it is necessary to decide it in order to grant relied to the P/
D in a manner that it doesn’t affect the final judgement.
- Depends on facts of the case— no cut and dried test can be laid.
E. ‘Suit’
- Suit is a proceeding which is commenced by presentation of a plaint.
- Ordinarily means a civil proceeding instituted by the presentation of a plaint.
F. Issue
- Issues are of 3 kinds — issue of fact, issue of aw and mixed issues of law and fact
- How far does a decision just based on law operate as res judicata? It has been held that — 

A pure question of law unrelated to facts which gives rise to a right doesn’t operate as res judicata. Thus
when the cause of action is different, or when the law has been altered, or when the decision relates to the
jurisdiction of a Court to try readier proceeding, or where the earlier decision declared valid a transaction
prohibited by law — it is not res judicata.
- A pure question of law is the interpretation of stature.



II. Former suit must have been a suit between the same parties or between parties under whom they,
or any of them claim. 

— Expl. VI to be read with this condition.

A. General and Meaning

- The second condition relates to the fact that the former suit must have been between the same parties or
between the parties under whom they had any claim.
- A party who has intervened is a party, but not one who is discharged through the suit or dies pending the
suit. 


B. Persons other than parties

a) Persons who claim under the parties to the suit — privies.
b) Persons not claiming under parties, but representing them.
c) Interveners
d) Minors
e) Strangers — not bound by decree passed between parties to a suit.

C. Res judicata between co-defendants

- There may be res-judicata between co-defendants and co-plaintiffs, 

(a) There must be a conflict of interest between co-defendants

(b) Necessary to decide that conflict in order to give relief to the P

(c) The question between co-defendants must have been finally decided 

(d) Co-defendants were proper parties in the former suit.
- Eg. Case of a will. A sues B, C and D. While interpreting the will, B, C and D might have competing
rivalries. The decision of the Court in interpreting the will operates as res judicata in subsequent suits
between any of the D’s against the rest.

D. Pro forma Defendant

- Defendant to a suit against whom no relief is claim is a pro forma defendant.
- Such a D may be added to a suit merely because his presence is necessary for a complete and final
decision.
MAHIMA BALAJI !9
- Due to the fact that no relief is sought from him, a finding does not operate as res judicata in a subsequent
suit against him.

E. Explanation VI
- Explanation VI deals with representative suits i.e. suits instituted by or against a person in his
representative, as distinguished from individual capacity.
- This provides that where persons litigate bona fine in respect of a public right/private right claimed in
common for themselves or others, and all persons interested can be deemed to claim under persons so
litigating.
- Provides one aspect of constructive res judicata. Where the law assumes that all persons who have the
same interest as the Ps are constructively barred by res judicata from re-agitating matters directly and
substantially in issue in a former suit. 

(i) Must be a right claimed by one or more persons in common for themselves and others not expressly
named in the suit

(ii) parties not expressly named must be interested in such right

(iii) litigation must have been conducted bona fine and on behalf of parties interested 

(iv) O.1/R.8 — if suit under this, all conditions must have been strictly complied with.

III. Such parties must have been litigating under the same title in the former suit.
- The same title means same capacity. Title refers to capacity or interest of a party.
- Litigating under the same title means that the demand should be of the same quality in the second suit as it
was in the first. Has nothing to do with the cause of action on which he sues/is sued.
- Identity of title in two litigations is the test, and not the identity of the subject-matter involved in the two
cases.
- Where the right in both the suits is the same, the subsequent suit will be barred even though the right in
the subsequent suit is sought to be established on a ground different from the one in the former suit.

IV. Court which decided the former suit must be a court competent to try the subsequent suit or the
suit in which such issue is subsequently raised 

— Expl. II and VIII to be read with this condition.

A. General and Object

- The fourth condition of res judicata is that the court which decided the former suit which must be a
competent court to try the subsequent suit.
- Thus the decision in a previous suit by a Court not competent to try it will not operate as res judicata.
- Competent means ‘competent to try the subsequent suit if brought at the time the first suit was brought.
B. Types of Courts
a) Court of Exclusive Jurisdiction 

Revenue Courts, Land Acquisition Courts, etc. If a matter directly and substantially in issue in a former
suit has been adjudicated upon by a court of exclusive jurisdiction, such adjudication will bar the trial of
the same matter in a subsequent suit in an ordinary civil court.
b) Court of Limited Jurisdiction

A decision on an issue heard and decided by a court of limited jurisdiction will operate as res judicata on
a subsequent suit irrespective of the fact that such court of limited jurisdiction was not competent to try
the subsequent suit.
c) Court of Concurrent Jurisdiction 

Where the court which decided the former suit was a court of concurrent jurisdiction having competence,
the decision would operate as res judicata. 

— Means concurrent as regards the pecuniary limit as well as the subject matter of the suit. 


C. Test
The quest is to see if the second suit could have been decided by the first court. If yes, the decision would
operate as res judicata. 


D. Explanation II
- Explanation II makes it clear that for the purpose of res judicata, the competence of the court shall be
determined irrespective of any provision as to a right of appeal from the decision of such court.
MAHIMA BALAJI !10

V. Matter directly and substantially in issue in the subsequent suit must have been heard and decided
by the court in the former suit. 

— Expl. V to be read with this condition.

A. General and Scope

- Final consideration is that the matter directly and substantially in issue in the subsequent suit must have
been heard and finally decided by a Court in the former suit.
- Means a matter upon which the court has exercised it’s judicial mind and has come to the conclusion that
one side is right and has pronounced a decision accordingly.
- A matter can be said to be heard and finally decided notwithstanding that the former suit was disposed —
ex parte, by failure to produce evidence, or by a decree on an award, or by oath.
- Matter on the former suit must have been decided on merits. Thus if the former suit was dismissed for
want of jurisdiction, or for lack of P’s appearance, or ground of non-joinder of misjoinder or lack of being
properly framed, then it would not operate as res-judicata. 


B. Necessity of Decision
- Findings of a court must have been necessary for determination of a suit. If finding is not necessary, it will
not operate as res judicata.
- What operates as res judicata is the ratio of what is fundamental to the decision. It cannot be ramified or
expanded by logical extension.
- Everything that should have the authority of res judicata is, and ought to be, subject to appeal, and
reciprocally an appeal is not admissible on any point not having the authority of res judicata.

C. Findings
1) If P’s suit is wholly dismissed: no issue decided against D can operate as res judicata against him in a
subsequent suit, for he cannot appeal from a finding on any such issue as the decree is wholly against
him.
2) Suit is decreed — no issue decided against him can operate as res judicata for he cannot appeal form a
finding as the decree is wholly in his favour
3) Appeal against finding — no appeal lies against a mere finding as the Code doesn’t provide for filing of
any such appeal.

D. Explanation V mainly relates only when the relief claimed is — substantial relief and the Court is bound
to grant it.
_____________ _____________ _____________ ______________ ______________ _______________

EXECUTION PROCEEDINGS: EXPLANATION VII

General principles of res judicata were held to be applicable even to execution proceedings.

DISMISSAL IN LIMINE 

Application dismissed by one word: ‘dismissed’. Such dismissal in liming without passing a speaking order
without reasons will not operate as res judicata in subsequent proceedings. Prima facie, such dismissal would
indicate that a court considered contentions and dismissed, but without grounds it is difficult to realise the
factors weighed in.

EX PARTE DECREE
- An ex party decree is one passed in absence of the defendant, even though duly served.
- An ex party decree passed by a competent court on merits will operate as res judicata. Non appearance is
immaterial for application of Section 11.

WITHDRAWAL OF SUIT
Does not operate as res judicata in filing a subsequent suit for the same cause of action. There are no merits
discussed if a suit is withdrawn.

RES JUDICATA: STATIC SITUATIONS — not to changing circumstances or change in law.

ERRONEOUS DECISION
- An incorrect decision by a court that has jurisdiction is as much binding between the parties as a right one,
and may be set aside only in appeals or revisions to higher courts if such is provided by the law.
MAHIMA BALAJI !11
- A pure question only of law or jurisdiction does not operate as res judicata.
TEST TO SEE IF SUBSEQUENT PROCEEDING IS BARRED BY RES JUDICATA
- Forum or competence of the Court
- Parties and their representatives
- Matters in issue
- Matters which ought to have been made ground for attack/defence in former suit
- Final decision.

INTERIM ORDERS
- Doctrine of res judicata applies to different stages of the same suit/proceeding.
- Interlocutory order decides a controversy in part, such decision would bind the parties and operate as res
judicata at all subsequent stages of the suit.
MAHIMA BALAJI !12

PLACE OF SUING
Section 15: P to file a suit in court of lowest grade competent to try it.
Sections 16-18: Suits relating to immovable property
Section 19: Suits for compensation of wrong to person/movable property
Section 20: Residuary section and covers all cases not dealt under 15-19
Section 21: Recognises the well established principle that the defect as to territorial/pecuniary jurisdiction
can be waived.
Section 21-A: Bars a substantive suit for setting aside a decree passed by a court on the ground of want of
jurisdiction

SECTION 15
PECUNIARY JURISDICTION
- States that every suit should be instituted in the court of the lowest grade competent to try it.
- It is a rule of procedure and does not affect the jurisdiction of the court.
- Object: (i) to see that the courts of higher grades shall not be overburdened; (ii) afford convenience to
parties and witnesses who may be examined.
- Plaintiff’s valuation in the plaint, prima facie, determines jurisdiction of court. Not the amount ultimately
may be passed.
- This does not however mean that the P can assign an arbitrary value to the suit so to choose the court in
which he wants to file a suit. If the P deliberately undervalues or overvalues the claim for the purpose of
choosing the forum, then it would be the duty of the Court to return it to the proper court.
- In the same light, Court may require the P to show that the valuation made is proper.
- However, Court may pass a decree for amount exceeding the pecuniary limits of it’s jurisdiction.
TERRITORIAL JURISDICTION

(a) Suits in respect of immovable property (Ss. 16-18) 




SECTION 16 — 5 kinds of suits

(i) Suits for recovery of immovable property

(ii) Suits for partition of immovable property

(iii) Suits for foreclosure, sale or redemption in case of mortgage or of charge 

(iv) Suits for determination of any other right/interest 

(v) Suits for torts to immovable property 



In these cases, suits must be filed in court within the local limits of whose jurisdiction the property is
situate. 



In case property is within jurisdiction of more than one court — Section 17 applies. 

SECTION 17 specifies that where is suit is to obtain a relief respecting, or damage for torts to,
immovable property situate within jurisdiction of different courts, the suit can be filed in the court within
the local limits of whose jurisdiction any portion of the property is situate provided that the suit is within
the pecuniary jurisdiction of such court. 



SECTION 18 deals with instance where there is uncertainty as to the local limits of the jurisdiction of
which the property is situate. In such cases, if one of these Courts is satisfied that there is such
uncertainty, may, after recording a statement to that effect, proceed to entertain and dispose of the suit. 


(b) Movable property (SECTION 19) 


Suit for wrong to movable property follows the persons. It may be brought at the option of the plaintiff
either at the place where the wrong is committed, or where the defendant resides, carries on business or
personally works for gain. 

— Where the wrong consists of a series of acts, a suit can be filed at any place where any of the acts has
been committed. 

— Similarly, where a wrongful act has been committed at one place and consequences ensure at another
place, the suit can be instituted at the option of the plaintiff where the action took place, or consequences
ensued.

MAHIMA BALAJI !13
(c) SECTION 20. 

All suits in cases not covered by previous rules can be filed at the P’s option at the following courts — 

(a) Where the cause of action, wholly or partly arises

(b) Where the defendant resides, or carries on business or personally works for gain

(c) Where there are 2 or more defendants, any of them resides or carries on business or personally works
for gain, provided that in such case — (i) either the leave of the court is obtained; or (ii) the defendants
who do not reside or carry on business or personally work for gain at that place acquiesce in such
institution.

FORUM SHOPPING
SC disapproved and deprecated the practice of litigants crossing a forum which may oblige them by
entertaining suits though they have no jurisdiction.



SECTION 21.
OBJECTION AS TO JURISDICTION

- Object is to protect honest litigants and to avoid harassment to P’s who have bonafide initiated
proceedings which is later found to be wanting in jurisdiction.
- Objection as to local jurisdiction does not stand on the same footing of a court to try the case. Competence
of a court to try a case does to the root of the jurisdiction.
- Under Section 21(I), no objection as to the place of suing will be allowed unless the following 3
conditions are satisfied, and the conditions must coexist. 

(a) Objection was taken in the court of first instance

(b) It was taken at the earliest possible opportunity and in cases where issues are settled at/before
settlement of issues 

(c) There has been a consequent failure of justice
- If the D allows the trial court to proceed without raising an objection as to the place of suing and takes the
chance of a credit in his favour, he waives the objection and it will not be subsequently permitted to be
raised.
- Whether there has been prejudice or not is a matter to be determined based on the facts of each case.
OBJECTION AS TO SUBJECT MATTER 

Court cannot adjudicate upon a subject-matter which does not fall within it’s province as limited or defined
by law. Jurisdiction as to the subject matter is essential and is a condition precedent to the acquisition of
authority over parties and the matter.
— Section 21 (ss. 3) says the principles apply to execution proceedings also.

As per Section 21 — no objection to the place of suing can be taken at an appellate or revisions stage of the
proceedings. Section 21A (1976 Amendment) states that no substantive suit can be filed to set aside a decree
passed by a Court on an objection as to the place of suing.

GENERAL PRINCIPLES

1) Every suit should be instituted in Court of the lowest grade

2) Court of a higher grade is not deprived of the jurisdiction to try such suit
3) Once a suit is properly instituted, the court has power to pass a decree exceeding it’s pecuniary
jurisdiction
4) Suits relating to immovable property should be instituted where the property is situated
5) Suits relating to movable property/person may be instituted where the wrong is committed/where the
defendant resides, business, works for gain,
6) Other suits see S. 20
7) Consent can neither confer nor take away jurisdiction of a competent court.
8) Where 2 or more courts have jurisdiction and parties agree to submit to jurisdiction of one of the courts,
it is a valid, legal, binding and enforceable agreement.
9) No objection as to territorial/pecuniary jurisdiction can be entertained by appellate or revisions court (or
executing court) unless see Objections as to Jurisdiction S. 21.
10) No suit would lie to set aside a decree on objection as to territorial (or pecuniary) jurisdiction of a court.
MAHIMA BALAJI !14

JURISDICTION INVOLVING A FOREIGN ELEMENT

LIS ALIBI PENDENS

- Based on the principle of comity. This rule is followed primarily in civil law jurisdictions.
- This is triggered “factual basis of the claim and the laws are same with view to obtain the same outcome.”
This is not a formal test, and technical and procedural rules cannot be used to defeat the outcome.
- Section 10 incorporates the rule of lis alibi pendens.
- [Sr.] “Lis alibi pendens is a Latin term that means an action on the same cause of action is pending
elsewhere. When two courts are hearing the same dispute they can reach inconsistent decisions. Res
judicata provides that a once a case is determined as final only appeal can rise from the case. No party
to the case can commence another case on the same dispute in another court. When a case is pending,
no other case on the same issue can be commenced in another court. Lis alibi pendens arises from
international comity and it permits a court to refuse to exercise jurisdiction when there is parallel
litigation pending in another jurisdiction. However, when a case is filed about materially different
issues, documents, and parties, lis alibi pendens can not apply to terminate the proceedings.”



FORUM NON CONVENIENS

- Forum non-conviens is a much wider rule, where the Court considers a host of legal and policy questions
before exercising jurisdiction.
- Forum non-conviens: A Court may refuse to exercise jurisdiction where a more appropriate forum is
available.


US host of factors (Gulf Oil v Gilbert 330 US 501)

1. Location of witness, evidence etc
2. Whether overwhelming hardship is caused to the defendant
3. Adequacy of alternative remedy
4. Expeditious use of judicial resources
5. Choice of applicable law
6. Public policy (US public policy should not be outsourced)
7. Vexatious motive, oppressive litigation
8. Jurisprudential developments 


The Indian position :- “whether there is an alternative competent forum.” The desire of FNC Flows from:
1. Avoid multiplicity of proceedings
2. Factors like economic strength of the parties
3. To be applied pursuant to a court which has more natural jurisdiction
4. Balance of convenience is not the sole criterion — though a material consideration, but not the sole
criteria justifying FNC. Notwithstanding the appropriateness of a particular forum, courts in general give
primacy to the governing law contractually chosen by the parties, particularly in commercial
transactions.

Modi Entertainment v. W.S.G. Cricket (AIR 2003 SC 1177)

- Was stated that only in exceptional circumstances, a contractually agreed court (court of choice) can be
declared as a ‘FNC’ through an anti suit injunction by the court of natural jurisdiction.

- This anti suit injunction can be granted by the court to prevent injustice if the scenario is such that it permits
a contracting party to be relieved of the burden of the contract.

- The exceptions include events since the date of the contract which have made it impossible for the party
seeking injunction to litigate the case because the essence of the jurisdiction of the contractually chosen
court no longer exists, or the court does not exist at a later point of time or because of force majeure
(unforeseen events beyond the control of the parties).
MAHIMA BALAJI !15

An analysis of the doctrine of FNC is significant in the context of cross border transactions.

Though FNC is primarily an equitable relief, valid concerns such as a lack of predictability and clarity in the
decisions of the courts do exist. Critics of FNC would also argue that it aids forum shopping and
protracting the litigation through interlocutory applications. In the context of transnational cases, clear and
simple rules might reduce time and expense for the parties concerned rather than hoping for courts to
exercise the right amount of judicial discretion.

On the other hand, rules however comprehensive, cannot anticipate the vast range of situations, which might
arise, which necessitates some degree of judicial flexibility and discretion. FNC can ensure fairness by
coming to the aid of a poor defendant in a third world country who is faced with litigation in a first world
country, say by a multinational corporation.

ANTI SUIT INJUNCTION

The doctrine of anti-suit injunction as meaning one wherein a court can direct a party not to
pursue the matter before another court.

20. The principles governing anti suit injunction were set out in Para 23 of Modi Entertainment Network v.
W.S.G. Cricket which are as follows:

“From the above discussion the following principles emerge:

(1) In exercising discretion to grant an anti-suit injunction the court must be satisfied of the following
aspects: -

(a) The defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the
court

(b) If the injunction is declined the ends of justice will be defeated and injustice will be perpetuated; and

(c) The principle of comity -- respect for the court in which the commencement or continuance of action/
proceeding is sought to be restrained;

(2) In a case where more forums than one are available, the Court in exercise of its discretion to grant anti-
suit injunction will examine as to which is the appropriate forum (Forum conveniens) having regard
to the convenience of the parties and may grant anti-suit injunction in regard to proceedings which are
oppressive or vexations or in a forum non-conveniens;

(3) Where jurisdiction of a court is invoked on the basis of jurisdiction clause in a contract, the recitals
therein in regard to exclusive or non-exclusive jurisdiction of the court of choice of the parties are not
determinative but are relevant factors and when a question arises as to the nature of jurisdiction agreed to
between the parties the court has to decide the same on a true interpretation of the contract on the facts
and in the circumstances of each case;

(4) A court of natural jurisdiction will not normally grant anti-suit injunction against a defendant before it
where parties have agreed to submit to the exclusive jurisdiction of a court including a foreign court, a forum
of their choice in regard to the commencement or continuance of proceedings in the court of choice, save in
an exceptional case for good and sufficient reasons, with a view to prevent injustice in circumstances such as
which permit a contracting party to be relieved of the burden of the contract; or since the date of the contract
the circumstances or subsequent events have made it impossible for the party seeking injunction to prosecute
the case in the court of choice because the essence of the jurisdiction of the court does not exist or because of
a vis major or force majeure and the like;

(5) Where parties have agreed, under a non-exclusive jurisdiction clause, to approach a neutral foreign forum
and be governed by the law applicable to it for the resolution of their disputes arising under the contract,
ordinarily no anti-suit injunction will be granted in regard to proceedings in such a forum conveniens and
favoured forum as it shall be presumed that the parties have thought over their convenience and all other
relevant factors before submitting to non-exclusive jurisdiction of the court of their choice which cannot be
treated just an alternative forum;
MAHIMA BALAJI !16
(6) A party to the contract containing jurisdiction clause cannot normally be prevented from approaching
the court of choice of the parties as it would amount to aiding breach of the contract; yet when one of the
parties to the jurisdiction clause approaches the court of choice in which exclusive or non-exclusive
jurisdiction is created, the proceedings in that court cannot per se be treated as vexatious or oppressive nor
can the court be said to be forum non-conveniens; and

(7) The burden of establishing that the forum of the choice is a forum non-conveniens or the proceedings
therein are oppressive or vexatious would be on the party so contending to aver and prove the same.”

TABLE RE. JURISDICTION