PRESENT vs.

SUBSEQUENT SUIT – WITH REFERENCE TO RES

SUBJUDICE

By

Name of the Student: Sai Suvedhya R.

Roll No.: 2018LLB076

Semester: 5th

Subject: Civil Procedure Code

Name of the Program: 5 year (B.A., LL.B.)

Name of the Faculty Member: Professor, Dr. Namballa Bhagyalakshmi

Date of Submission: 05/01/2021

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA “, SABBAVARAM,
VISAKHAPATNAM – 531035, ANDHRA PRADESH

1
ACKNOWLEDGEMENT

I would like to express my sincere gratitude to Professor Dr. Namballa Bhagyalakshmi Ma'am,
my esteemed Civil Procedural Code, for giving me this golden opportunity to take up this
research paper entitled 'Present vs. Subsequent Suit – With Reference to Res Subjudice' and
my sincere thanks to her for her continued sponsorship of my thesis and related studies, her time,
patience, inspiration and immense knowledge. During the entire course of my study, her advice
helped. For my studies, I could not have imagined finding a better advisor and mentor.

2
TABLE OF CONTENTS

CHAPTER I

• Introduction …………………………………………………………………………….. 08
• Meaning ………………………………………………………………………………... 08
• Evolution ……………………………………………………………………………….. 09
CHAPTER II

• Legal Analysis …………………………………………………………………………. 09

• Study of Various Provisions Under the Code ………………………………………….. 10
• Conditions for Res Subjudice ………………………………………………………….. 10
• Purpose of Res Subjudice ……………………………………………………………… 12
CHAPTER III

• Present Legal Frame Work …………………………………………………………….. 13

• Landmark Cases – Case Analysis ……………………………………………………… 15
• Conclusion ……………………………………………………………………………... 25
• Bibliography …………………………………………………………………………… 26

3
SYNOPSIS

ABSTRACT

Res Sub Judice in Latin means “Under Judgment”. It denote that a issue or casing is life form
measured by Court or Judge. When two or other cases are filed among the equal party on the
similar topic affair, in two or more diverse Courts, the capable court has authority to “Stay
Proceedings” of one more Court. In India, this conception is encapsulate in S.10 of Civil
Procedure Code.

AIMS AND OBJECTIVES OF THE RESEARCH PAPER

1. To understand the object and purpose of the doctrine of res sub judice
2. To understand the conditions essential to apply res subjudice.
3. To analyse section 10 of the code of civil procedure.
4. To understand the need of this doctrines.
5. To analyse the effectiveness of this doctrines with regard to relevant case laws.

RESEARCH QUESTION

An analysis of the doctrine of res sub judice with reference to relevant cases in the code of civil
procedure.

RESEARCH METHODOLOGY

The research paper has relied upon various primary and secondary sources. The research has
consulted section 10 and 11 of the code of civil procedure which embodies the doctrine of res
judicata and the doctrine of res subjudice. Other sources such as books, articles, and journals
account for secondary sources.

LITERATURE REVIEW

The following juristic writings have been reviewed with regard to the present subject matter:

4
1. In S.N Singh’s code of civil Procedure, it is mentioned that the stay of suits is mentioned
in section 10 and res judicata is mentioned in section 11 of the code. It further explains
the scope and object of these provisions with regard to relevant cases which has been
discussed in this research paper. This book also explains about the conditions regarding
the applicability of both the provisions, namely the doctrine of res sub judice and the
doctrine of res judicata. It further explains the situations in which a particular proceeding
is not constituted as a suit and also explains the effect of contravention with regard to the
doctrine of res sub judice.
2. As for res judicata, the code of civil procedure by Takwani explains the nature of such a
doctrine, and the fact that it has been derived from the English law concept of estoppel. It
further explains the doctrine of res judicata and the conditions essential for its
applicability. It explains about the consolidation of suits and also about how the matter in
issue is a relevant Part to apply the doctrine of res judicata.

5
ABBREVIATIONS

 AIR : ALL INDIA REPORTER

 ETC. : AND OTHER THINGS
 GOVT. : GOVERNMENT
 HC : HIGH COURT
 NO. : NUMBER
 ORS. : OTHERS
 SC : SUPREME COURT
 SCC : SUPREME COURT CASES
 SEC. : SECTION
 SCR : SUPREME COURT REPORTER
 SUPRA : AS STATED EARLIER
 U/S : UNDER SECTION
 WWW : WORLD WIDE WEB

6
TABLE OF CASES

 Escorts Const. Equipments Ltd. v. Action Const. Equipments Ltd. 1999 PTC 36 (Del)
 National Institute of Medical Health and Neuro Sciences v. C Parameshwara AIR 2005 SC 242
 Indian Bank v. Maharashtra State Cooperative Marketing Federation Ltd. AIR 1998 SC 1952
 Harish Chandra v. Triloki Singh AIR 1957 SC 444
 Arun General Industries v. Rishabh Manufacterers Pvt. Ltd. AIR 1972 Cal. 128
 Indian Bank v. Maharashtra State Cooperative Marketing Federation Ltd. AIR 1998 SC 1952
 Pukhraj D. Jain v. G. Gopalakrishna AIR 2004 SC 3504
 Manohar Lal v. Seth Hiralal AIR 1962 SC 527

TABLE OF STATUTES

 Civil Procedure Code, 1908

 Indian Evidence Act, 1872

SECTIONS PROVISION IN THE CIVIL PROCEDURE CODE

Sec. 10 Stay of Suits
Sec. 11 Res Judicata
Sec. 151 Saving of inherent powers of Court

7
 CHAPTER I

INTRODUCTION

Res sub judice is referred to as the provision as to the stay of suits.

Section 10 of the code of civil procedure, 1908, defines the doctrine or res sub judice. The
doctrine of res sub judice is otherwise known as the stay of suits. It is defines as follows:

“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 parties under
whom they or any of them claim litigating under the same title where such 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 pendency of a suit in a foreign court does not preclude the courts in India
from trying a suit founded on the same course of action1.”

As we all know, a person is free to file a suit through which he or she is harmed or on behalf of
anyone who is harmed. So the major question here is how does the court make sure that the suit
is exclusive. If the parties are free to file suits, they might file multiple suits regarding the same
matter in the same or different court of the same level. The court needs to make sure that there is
no multiplicity of proceedings, and thus there is a need of laws regarding the limitation of filing
suits regarding the same matter between the same parties. The concept of res sub judice is a
solution to all these problems2.

Basically the provisions of res sub Judice are provided under Section 10 of the Code of Civil
Procedure, 1908 which provides that a court shall not proceed with the trial of a suit brought
before it if the matter in issue is also directly and substantially in issue in a previously instituted
suit between the same parties and that previous suit is pending for adjudication in the same or
any other court in India3.

1
Section 10 of the Code of civil procedure, 1908.
2
Law Times Journal- Doctrine of Res Subjudice.
3
Section 10, Code of Civil Procedure, 1908.

8
MEANING

Res Sub Judice

Res Sub Judice in Latin means “Under Judgment”. It denote that a issue or casing is life form
measured by Court or Judge. When two or other cases are filed among the equal party on the
similar topic affair, in two or more diverse Courts, the capable court has authority to “Stay
Proceedings” of one more Court. In India, this conception is encapsulate in S.10 of Civil
Procedure Code.

EVOLUTION

The regulation of res sub judice, in its substance, has an antiquated history, in spite of the fact
that it is hard to state absolutely whether the teaching as it stands now. Perceived in the
inaccessible past by both Hindu attorneys and Muslim legal scholars, it was referred to
antiquated Hindu Law as "Purva Nyaya" or "previous judgment". Under Roman Law, it was
perceived by the principle of exemption rei judicatae which likewise signified "past judgment".

All together for the bar of res sub judice to be relevant, it should be demonstrated that the reason
for activity in both the suits is equivalent to well as that the offended party had an occasion to get
the help that is currently being guaranteed in the resulting suit, in the previous continuing itself.

CHAPTER II

LEGAL ANALYSIS

The precept of res sub judice expects to keep courts of simultaneous locale from at the same time
engaging and arbitrating upon two equal suits regarding a similar reason for activity, same topic
and same help guaranteed.

For Example: Wife A documented a suit for partition of intimate life and authority of minor
youngster against spouse B. In this manner spouse B guaranteed care of minor youngster by
recording another suit against wife B. The second suit obligated to remain under Sec. 10 of CPC,
1908. Be that as it may, the issue emerges when a piece of the topic is basic to recently initiated

9
suit and consequently founded suit. In the event that the Appellate Division that just one plot was
basic in two suits, however that was not considered as a ground for remain and it was held that
the two suits should be attempted comparably.

ANALYSIS OF VARIOUS PROVISIONS UNDER THE CODE

The Code gives rules to the common court in regard of the teaching of res sub judice. This
standard applies to preliminary of a suit not the establishment thereof. No Court will continue
with the preliminary of any suit in which the issue in issue is likewise straightforwardly and
generously in issue in a formerly organized suit between similar gatherings, or between parties
under whom they or any of them guarantee disputing under a similar title where such suit is
forthcoming in the equivalent or some other Court in India having purview to allow the help
asserted, or in any Court past the cutoff points set up or proceeded by the Code and having like
locale, or under the steady gaze of the Supreme Court.4

Therefore civil court should not proceed with the trial of any suit in which the matter in issue is
directly and substantially in issue in a previously instituted suit between the same parties and the
court before which the previously instituted suit is pending is competent to grant the relief
sought.5

The stay must be of the latter suit and not of the earlier suit between the same parties.6 The word
suit includes an appeal, but it does not include an application for leave to appeal.7
CONDITIONS OF RES SUB-JUDICE

To pull in the use of this segment it is fundamental that the accompanying conditions are
satisfied:

1. There should be two suits one recently established and the other accordingly founded.

2. The issue in issue in the ensuing suit should be straightforwardly and significantly in issue in
the past suit.

4
S. 10 of the CPC, 1908.
5
Indian Bank Vs. Maharashtra State Cop. Marketing Federation Ltd, AIR 1998 (SC) 1952
6
Sachindra vs. Royani, 7DLR 198, Abdul Vs. Abdul, 44 DLR 601.
7
Swami Vs. Siris, 5 DLR 175

10
3. Both the suits should be between similar gatherings or their delegates

4. The recently founded suit should be forthcoming in a similar court in which the ensuing suit
is brought or in some other court in Bangladesh or in any court past the restrictions of
Bangladesh set up or proceeded by the Government or under the steady gaze of the high court.

5. The court in which the past suit is initiated should have ward to concede the alleviation
asserted in the resulting suit.

6. Such gatherings should prosecute under a similar title in both the suits.

In the event that these basic conditions are satisfied, the resulting suit should be remained by the
court where it is forthcoming It should be recalled that the establishment of the ensuing suit isn't
banished however its preliminary as it were. An official choice of the previous suit will work as
res-judicata in the resulting suit. However, issue emerges when some portion of the topic is basic
to recently organized suit and in this way established suit.8

When Not Appllied

Court cannot apply this section where point at issues are distinct and different,9 or even where
there are some issues in common and others are different issues.10 This section is also not
applicable between the suits where although the parties are same, but the issues are not the
same.11

Notwithstanding, this segment must be applied if the accompanying condition are fulfilled.
These are:

1. Two suits – Previously Instituted and Subsequently Instituted.

2. Matter in issue in ensuing suit – straightforwardly and generously in issue in past suit.

3. Both suits between same gatherings or their delegates.

8
C.K. Takwani, Civil Procedure, 6th Edition, Eastern Book Company, 2009, pg-65
9
Alimmllah Vs. Sheikh. 43DL RLL3
10
Abdur Vs. Asrafun, 37 DLR 271.
11
Manzar Vs. Rema. 33 DRL 49

11
4. Previous suit should be forthcoming in same or in some other court in India.

5. The court managing recently initiated suit equipped to give alleviation guaranteed in
resulting suit.

6. Parties prosecuting under similar titles in both the suit.

7. The word 'will' in the part makes it required and the second court finds that the above
conditions are fulfilled, the court won't continue with the thusly established suit, that is, the court
will remain with the procedure of resulting suit.

PURPOSES OF RES SUB JUDICE

The Sec. 10 expects to shield an individual from variety of procedures and to evade a contention
of choices. It additionally shields the disputant individuals from pointless provocation. It
likewise means to evade bother to the gatherings and offers impact to the standard of res
judicata.12

Inherent Power To Stay

Court may use its inherent power to stay of suit. Although the provision of Sec. 10 is mandatory,
but this provision has not taken away the court’s inherent power under Sec. 151 so as to stay the
proceedings on the facts and circumstances of a given case to secure the ends of justice where
section 10 is not applicable.13 Therefore court may use its inherent power to secure the ends of
justice when section – 10 is not applicable, even to prevent abuse of process of court, court may
stay former suit by applying its inherent power.14

Nonetheless, in the light of the clarification to segment 10, there is no bar on the intensity of an
Indian court to attempt a thusly initiated suit if the recently established suit is forthcoming in the
forthcoming in an unfamiliar court.

12
S.P.A- Annamalay Chetty vs. B.A. Thornlill AIR 1931 PC 263
13
Suraiya Vs Alimullah. 24 DLR 133, Ayat Ali Bhuyan Vs. Janata Bank, 40 DLR 56; Bashirullah Vs. Abdul Bari,
21 DLR 183
14
Ram Vs. Devidayal, AIR 1954 Bom. 176.

12
It is further critical to recall that a declaration passed in contradiction of area 10 isn't a nullity,
and in this way, can't be ignored in execution procedures. Once more, as expressed above, it is
just the preliminary and not the organization of the resulting suit which is banished under this
segment. Along these lines, it sets out a standard of method, straightforward as can be, which can
be deferred by a gathering. Henceforth, if the gatherings defer their privilege and explicitly
request that the court continue with the resulting suit, they can't a while later test the legitimacy
of the ensuing procedures.

Suit Pending In Foreign Court

The pendency of a suit in an unfamiliar court doesn't block the court in Bangladesh from
attempting a suit established on a similar reason for activity. So the court of Bangladesh may
attempt a hence organized suit if the recently founded suit is forthcoming in an unfamiliar
court.15

Relevant Legal Bodies

As the heading of the segment says 'remain of suit', implies no court ought to continue with the
preliminary of any suit in which the issue in issue is straightforwardly and significantly in issue
with the recently initiated suit between similar gatherings and the court before which the recently
organized suit is forthcoming is skilled to concede the alleviation looked for.

The motivation behind the segment is to get conclusiveness the judgment and to keep away from
the opposing choice by the two distinctive court, as there is an awesome chance that in the event
that when matter is at the same time being chosen by various courts of simultaneous purview, the
courts may think of various choices and afterward it will be extremely hard to finish which
choices to be complied with.

In basic word, the very authority of law will come in question, there will be no conclusion of
judgment. Thus, with the goal to keep courts of simultaneous ward from at the same time
engaging and arbitrating upon two equal prosecutions in regard of same reason for activity, a
similar topic and a similar help, this part is given in the Code. Be that as it may, this standard just

15
Explanation of S. 10 of the CPC, 1908

13
applies to preliminary of a suit and not the foundation thereof. In spite of the fact that, it doesn't
block a court from passing interval orders, however it applies to offers and modifications.

The arrangement of law is to keep an offended party to one case to shield an individual from
assortment of procedures and furthermore to dodge a contention of choices by courts in regard of
same help.

CHAPTER III

PRESENT LEGAL FRAMEWORK

Constructive Res Judicata

Rule of contructive res judicata is engrafted under Explanation IV of Section 11 of the Code. It is
counterfeit type of res judicata and gives that if a request might host been taken by a gathering in
a procedure among him and his adversary, he ought not be allowed to take that supplication
against a similar gathering in an ensuing continuing regarding a similar topic. That unmistakably
is against contemplations of public arrangement on which the regulation of res judicata is based
and would mean provocation and difficulty to the adversary. Furthermore, if such a course is
permitted to be embraced, the regulation of conclusion of decisions articulated by the courts
would likewise be physically influenced.

Hence, it helps in increasing present expectations of res judicata by reasonably interpreting the
overall guideline of quelling a peevish prosecutor. That is the reason this standard is called
valuable res judicata, which, actually, is a viewpoint or enhancement of the overall guideline of
res judicata.

Res Judicata and Public Interest Litigation

Indeed, even in a public interest case procedural law is appropriate however not carefully.
Consequently, the rule of res judicata is additionally relevant. Where the earlier open interest
prosecution relates tom illicit mining, ensuing public interest case to secure climate isn't
banished.

Writ Petitions and Res Judicata

14
In M.S.M Sharma V. Dr. Shree Krishna16, 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.

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.P.17, 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.

LANDMARK CASES – CASE ANALYSIS

1) Case Name: Escorts Const. Equipments Ltd. v. Action Const. Equipments Ltd. 18

Citation: 1999 PTC 36 (Del)

Court: Delhi High Court

Bench: M Siddiqui

Facts: The respondent had petitioned for remain of present suit, an application u/s 10 CPC, on
ground that the issue in discussion is forthcoming in Jamshedpur Court too. This was
contradicted by offended party on ground that, the respondents had raised issue of purview of
Jamshedpur Court to engage same suit; and that application u/s 10 CPC can be recorded in the
current suit, just if protest as for absence of locale was removed in Jamshedpur Court.

Issues:

 Whether the plaintiffs have made out a prima facie case for grant of ad interim
injunction?

16
AIR 1960 SC 1186
17
AIR 1961 SC 1457
18
1999 PTC 36 (Del)

15
  Whether the balance of convenience lies in favour of granting or refusing the ad interim
injunction that is sought?
Reasoning:

Court held that the conditions imperative to summon S.10 CPC are:

• Matter in issue in both the suits to be generously the equivalent.

• Suit to be between similar gatherings or gatherings contesting under them.
• Previously initiated suit to be in a similar Court or an alternate Court, which has ward to
concede the alleviation inquired.
Judgement:

There isn't anything such that litigant ought not scrutinize the competency of already Court in the
recently organized suit, and there remains the way that the offended party with all due respect
against S.10 CPC, had not expressed the Jamshedpur Court is capable. Along these lines help
was allowed to the respondent.

2) Case Name: National Institute of Medical Health and Neuro Sciences v. C Parameshwara19

Citation: AIR 2005 SC 242

Court: Supreme Court

Bench: A Pasayat, S Kapadia

Facts: The respondent was a Senior Pharmacist at the organization, for this situation being the appealing
party. The litigant sued the respondent for misappropriation of medications to the tune of nearly Rupees one
lakh 80,000. For the equivalent, an enquiry official was delegated, who presented a definite report. In the
wake of experiencing the report, the head of the foundation eliminated the respondent from administration.
Being bothered, the respondent moved the Labor Court, which put aside the evacuation. The litigant being
bothered by the Labor Court's choice recorded a writ with respect to the equivalent. Then again, the
appealing party likewise sued the respondent in the Civil Court to recuperate the harms.

Issues:

19
AIR 2005 SC 242
16
Reasoning:

“The article fundamental Section 10 is to keep Courts of simultaneous purview from all the while
attempting two equal suits in regard of the - same issue in issue. The article basic Section 10 is to evade two
equal preliminaries on similar issue by two Courts and to abstain from recording of clashing discoveries on
issues which are straightforwardly and considerably in issue in recently founded suit. The language of
Section 10 recommends that it is referable to a suit established in the common Court and it can't have any
significant bearing to procedures of other nature organized under some other resolution. The object of
Section 10 is to keep Courts of simultaneous ward from at the same time attempting two equal suits
between similar gatherings in regard of a similar issue in issue. The basic test to pull in Section 10 is,
regardless of whether on ultimate conclusion being reached in the past suit, such choice would work as res-
judicata in the ensuing suit. Area 10 applies just in situations where the entire of the topic in both the suits is
indistinguishable. The catchphrases in Section 10 are "the issue in issue is straightforwardly and
considerably in issue" in the past founded suit. The words "straightforwardly and generously in issue" are
utilized in contra-differentiation to the words "by chance or correspondingly in issue". Thusly, Section 10
would apply just if there is personality of the issue in issue in both the suits, which means consequently, that
the entire of topic in both the procedures is indistinguishable.”20

“In the current case, the appealing party had started the disciplinary procedures against the respondent thus
on charges of misappropriation of medications. In the said disciplinary procedures, the respondent was seen
as liable of supposed misappropriation of medications. Based on the discoveries showed up at in the
disciplinary enquiry, the respondent in this was taken out. The degree of the misfortune endured by the
litigant, as found in the disciplinary enquiry, was Rs. 1,79,668.46. Being distressed by the request for
excusal, the respondent moved the Labor Court. On 29.10.2001, the Labor Court passed an honor putting
aside the request for evacuation dated 12.4.1993. Being oppressed, the appealing party founded writ request
No. 24348/02. The appealing party has likewise founded common suit No. 1732/95 for recuperation of the
misfortune endured by it to the tune of Rs. 1,79,668.46 with interest. Hence, as can be seen from the above
realities, both the procedures worked in various circles. The topic of the two procedures is altogether
particular and extraordinary. The reason for activity of the two procedures is unmistakable and
extraordinary. The reason for activity in recording the said suit is the misfortune endured by the litigant

20
Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal

17
because of the deficiency of medications. Then again, in the said writ appeal No. 24348/02, the
administration has tested the honor of the Labor Court allowing reestablishment of the respondent.

As expressed above, Section 10 CPC is referable to a suit organized in a common Court, The procedures
under the watchful eye of the Labor Court can't be compared with the procedures under the watchful eye of
the Civil Court. They are not the Courts of simultaneous purview. In the conditions, Section 10 CPC has no
application to current realities of this case.”21

In the denounced judgment, the High Court has seen that since the writ request No. 24348/02 recorded by
the litigant against the honor of the Labor Court was forthcoming in the High Court and since the High
Court was better than the Civil Court it was attractive to remain the death of the declaration by the Civil
Court. At this stage, it could be referenced that the respondent applied for remain of the preliminary
forthcoming in the City Civil-Court, Bangalore under Section 10 read with Section 151 CPC. Since the
extent of the writ appeal documented by the administration was altogether unmistakable and separate from
the suit founded by the administration in the Civil Court, we are of the view, that, the High Court had
blundered in coordinating the preliminary Court not to continue with the drawing up of the announcement.

“In the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal 22, it has been held that inherent
jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 CPC, but
that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals
expressly with a particular matter, the provision should normally be regarded as exhaustive. In the present
case, as stated above, Section 10 CPC has no application and consequently, it was not open to the High
Court to bye-pass Section 10 CPC by invoking Section 151 CPC.”23

Judgment:

The HC observed that since the writ petition filed by the appellant against the award of the Labor Court was
pending in the HC, and since the HC was superior to the Civil Court, it was desirable that the decree of the
Civil Court stay. The SC overruled this decision, because the scope of both the cases in the Labor Court as
well as Civil Court is different, and permitted the appeal.

21
Section 10 CPC
22
1962 AIR 527
23
Section 151 CPC.

18
3) Case Name: Indian Bank v. Maharashtra State Cooperative Marketing Federation Ltd.24

Citation: AIR 1998 SC 1952

Court: Supreme Court

Bench: S.C. Agrawal., G.T. Nanavati

Facts:

The respondent Federation applied child he appealing party bank on 5.6.1989 to open Irrevocable Letter of
Credit for an amount of Rs.3,78,90,000/ - for M/s. Shankar Rice Mills. In accordance with that demand the
Bank opened an Irrevocable Letter of Credit on leave to the Federation to shield the suit restrictively upon
the Federation saving Rs. 4 crores in the Court. The summons for judgment was discarded likewise and the
Notice of Motion was excused.

Wronged by the request for the scholarly Single Judge in request for judgment the Federation documented
Appeal No.953 of 1994 preceding the Division Bench of the High Court; and, against the request passed on
Notice of Motion it favored Appeal No.954 of 1994. The Division Bench was of the view that the word
'preliminary' in segment 10 has not been utilized from a tight perspective and would mean whole procedures
after the respondent enters his appearance, held that segment 10 of the Code applies to an outline suit
moreover. It additionally held that the outline suit recorded by the Bank being a therefore initiated suit was
needed to be remained. It permitted both the advances, put aside the requests passed by the educated Single
Judge and remained the synopsis suit till the removal of the earlier suit documented by the Federation.

The accommodation of the scholarly insight for the litigant was that the view taken by the educated Single
Judge was right and Division Bench has submitted a mistake of law in taking an opposite view. It was his
dispute that if segment 10 is made appropriate to rundown suit additionally the very object of making a
different arrangement for outline suits will be baffled. The educated insight for the respondent, then again,
upheld the view taken by the Division Bench.

Issue:

Whether the bar contained in section 10 applies to a summary suit filed under Order 37 of the CPC?

24
AIR 1998 SC 1952

19
Reasoning:

The word 'preliminary' in Section 10 with regards to rundown suit can't be deciphered to mean the whole
procedures beginning with foundation of the suit by housing a plaint. In a rundown suit the 'preliminary'
truly starts after the Court or the appointed authority awards leave to the litigant to challenge the suit.
Consequently, the Court or the appointed authority managing the rundown suit can continue up to the phase
of hearing the request for judgment and passing the judgment for the offended party if:

(a) The respondent has not applied for leave to guard or if such application has been made and cannot or if,

(b) The litigant who is allowed to safeguard neglects to agree to the conditions on which leave to protect is
conceded.

Judgment:

Held that the aim of embargo in S.10 CPC, is to:

 Stop Courts of parallel Jurisdiction from concurrently trying two similar cases.
 Keep away from contradictory conclusion on the issue in matter.
4) Case Name: Pukraj D. Jain v. G. Gopalakrishna

Citation:

Court: Supreme Court

Bench: Hon'ble Mr. Justice S. Rajendra Babu Hon'ble Mr. Justice G.P. Mathur

Facts:

“To comprehend the debate included it is important to set out the realities which are minimal
included. (I) The appealing party no. 6 to 10 are children and little girls of Shri M.G. Dayal and
they were proprietors of the suit property (private structure at Jayanagar, Bangalore). They
executed a consent to sell the suit property for Dr. G. Gopalakrishna (offended party/respondent
no.1) on 5.12.1974 for a thought of Rs. 1,42,500/ - and got Rs. 42,500/ - via advance. The
respondent no.1 was additionally placed possessing the ground floor of the property. (ii) The
respondent no.1 gave a lawful notification cancelling the agreement and guaranteed discount of
the development sum paid by him. On 7.11.1977 he recorded OS No. 801 of 1977 (thusly

20
renumbered as OS No. 1891 of 1980) against the appellants nos. 6 to 10 (proprietors of the
property) guaranteeing the sum which had been paid via advance. After significant timeframe
respondent no.1 moved a correction application looking for authorization to change over the suit
into one for explicit execution of the understanding of offer. This application was dismissed by
the preliminary court on 3.12.1984 on the ground that the suit for explicit execution had gotten
banished by restriction. The Revision Petition favored against the said request being CRP No.
702 of 1985 was excused by the High Court at the confirmation stage on 29.5.1985. (iii) The
litigant nos. 1 to 5 (Pukhraj D. Jain and this fours children) bought the property in contest from
the first proprietors, specifically, respondent nos. 6 to 10 on 18.4.1985 for Rs. 3,60,000/ - and
they were placed possessing the main floor of the structure. (iv) Respondent no.1 recorded an
alteration application on 26.6.1985 looking for a revision of the plaint in OS No. 801 of 1977 and
asserting an extra measure of Rs. 125 towards the expense of the lawful notification.”25

“The alteration application was permitted and the respondent no.1 was needed to pay an extra
court charge of Rs. 12.50 taking into account the improved case. Notwithstanding, rather than
paying aforementioned sum the respondent no.1 recorded an update expressing that he was not in
a situation to pay the court expense and as such the plaint might be dismissed being insufficiently
stepped. The preliminary court announced the suit for recuperation of the sum on 24.7.1985. (v)
Though the suit recorded by respondent no.1 was proclaimed at this point he favored an
amendment appeal being CRP No. 3797 of 1985 testing the judgment and declaration passed in
support of himself. The High Court however saw that it was a bizarre amendment recorded by an
offended party at this point permitted the equivalent on 18.2.1987, put aside the judgment and
announcement of the preliminary court and dismissed the plaint. (vi) The appellants nos. 1 to 5
after execution of the deal deed in support of themselves on 18.4.1985, recorded a suit being OS
No. 4631 of 1986 looking for expulsion of respondent no.1 from the beginning of the house in
contest and furthermore for mesne benefits. (vii) On 2.4.1988 the respondent no.1 documented
another suit being OS no. 1629 of 1988 against appealing party nos. 6 to 10 in the Court of City
Civil Judge, Bangalore for explicit execution of the arrangement dated 5.12.1974. In this suit

25
AIR 1998 SC 1952

21
issue no. 3 identifying with the bar of impediment and issue no.4 identifying with the practicality
of the suit were outlined.”26

“The respondent no.1 additionally recorded an application under segment 10 CPC looking for
remain of his own suit OS No. 1629 of 1988 on the ground that the issues included were likewise
straightforwardly and considerably in issue in a formerly established suit being OS No. 4631 of
1986 which had been recorded by the appellants nos. 1 to 5 for his ousting from the beginning of
the house and for ownership. (viii) The Addl. City Civil Judge, Bangalore excused OS No. 1629
of 1988 on 30.9.1975 subsequent to choosing issues no.3 and 4 wherein he held that the suit was
banned by impediment and the equivalent was not viable. (ix) The respondent no.1 favored RFA
no. 635 of 1996 in the High Court against the judgment and pronouncement dated 30.9.1995 of
the Addl. City Civil Judge, Bangalore. The High Court permitted the allure and put aside the
judgment and pronouncement of the Addl. City Civil Judge and remanded the issue to the
preliminary court to discard the application moved by the respondent no.1 (offended party) under
area 10 CPC for remain of his suit. It is this judgment and request which is topic of challenge in
the current allure. (x) The suit for ousting of respondent no.1 and ownership (OS No. 4631 of
1986) recorded by the appealing party nos. 1 to 5 was proclaimed by the preliminary court on
20.12.1997. RFA no. 171 of 1998 favored by respondent no.1 against the previously mentioned
judgment and announcement was excused by the High Court on 2.7.2001. This advancement has
occurred resulting to the recording of uncommon leave appeal in this Court.”27

Issues:

The only ground urged in the appeal preferred by respondent no.1 in the High Court was that as
he had filed an application under section 10 CPC on 21.10.1993 seeking stay of his suit (OS No.
1629 of 1988), it was obligatory upon the trial court to consider the said application first before
deciding issues no.3 and 4.

Reasoning:

“We host heard educated guidance for the gatherings and have scrutinized the records. As we
would see it, the view taken by the High Court is entirely wrong in law and should be saved. The

26
Pukraj D. Jain v. G. Gopalakrishna
27
Ibid.

22
procedures in the preliminary of a suit must be directed as per arrangements of the Code of Civil
Procedure. Segment 10 CPC no uncertainty sets out that no court will continue with the
preliminary of any suit in which the issue in issue is additionally straightforwardly and
generously in issue in a formerly organized suit between similar gatherings or between parties
under whom they or any of them guarantee contesting under a similar title where such suit is
forthcoming in the equivalent or some other Court in India have purview to allow the help
asserted. Notwithstanding, simple documenting of an application under segment 10 CPC doesn't
in any way put a ban on the intensity of the court to look at the benefits of the issue. The object
of the part is to keep Courts of the simultaneous purview from at the same time attempting two
equal suits in regard of a similar issue in issue.”28

“The segment authorizes only a standard of method and a pronouncement passed in negation
thereof isn't a nullity. It isn't for a suit to direct to the court with regards to how the procedures
should be led, it is for the court to choose what will be the best course to be received for speedy
removal of the case. In a given case the stay of procedures of later suit might be vital to dodge
variety of procedures and badgering of gatherings. Be that as it may, where along these lines
initiated suit can be settled on absolutely lawful focuses without taking proof, it is consistently
open to the court to chose the pertinent issues and not to keep the suit forthcoming which has
been organized with a diagonal rationale and to make provocation the opposite side.”29

Judgement:

“The appeal is accordingly allowed with costs throughout and the judgment and order of the high
court dated 17.3.1997 is set aside. The decree dismissing the suit passed by the trial court is
affirmed.”30

5) Case Name: Canara Bank v. N.G. Subbaraya Setty31

Citation: AIR 2018 SC 3395

Bench: Hon'ble Mr. Justice Adarsh Kumar Goel, Hon'ble Mr. Justice R.F. Nariman

28
Supra
29
Pukraj D. Jain v. G. Gopalakrishna
30
Ibid.
31
AIR 2018 SC 3395

23
Court: Supreme Court of India

Facts:

The concise realities important to like the pertinence of the said special case for the teaching of
res judicata are as per the following. In the current case, respondent No.1 profited a credit office
from the candidate bank at some point in 2001. Respondent No.2, his child, remained as an
underwriter for reimbursement of the said office. As respondent No.1 defaulted in
reimbursement of an amount of Rs.53,49,970.22, the applicant bank documented O.A. No. 440
of 2002 preceding the DRT Bangalore, against respondent Nos.1 and 2. Respondent No.1, to
reimburse the levy of the bank, marked a task deed dated 8.10.2003 with the Chief Manager,
Basavanagudi Branch, Bangalore for task of the trademark"EENADU"in regard of agarbathies
(incense sticks) on certain standing and conditions.

On 15.4.2004, respondent No.1 recorded O.S. No.2832 of 2004 against the bank testing the
abrogation of the said task deed and for recuperation of Rs.2,16,000/ - with premium
consequently for the period 1.10.2003 to 31.3.2004. On 17.9.2004, the applicant bank
documented O.S. No.7018 of 2004 for a presentation that the task deed went into among it and
respondent No.1 is vitiated unintentionally, excessive impact and extortion and that, hence, the
said deed is unenforceable in the eye of law.

Issues:

Whether the judgment dated 27.4.2013 can be considered to be res judicata in the second
proceeding in this case, namely the suit of 2008 filed by respondent No.1?

Reasoning:

We may initially manage the starter point encouraged by Shri Mehta. He squeezed into
administration the judgment in V. Rajeshwari v. T.C. Saravanabava, (2004) 1 SCC 551 for the
recommendation that a request of res judicata not appropriately brought up in the pleadings or
put in issue at the phase of preliminary couldn't be allowed to be taken. A more intensive glance
at the said judgment shows that the judgment managed such a supplication not being allowed to
be raised unexpectedly at the phase of allure. In the current case, however an issue as to res
judicata was not struck between the gatherings, the two players contended the issue dependent on

24
the pleadings and the judgment contained in the two suits of 2004. It is simply after full
contentions on the two sides that the preliminary Court in the judgment dated 30.10.2015
acknowledged the respondent's supplication of res judicata. Indeed, even under the steady gaze
of the re-appraising Court, the purpose of res judicata was contended by the two players without
adverting to the previously mentioned protest. It is self-evident, along these lines, that this
ground raised unexpectedly under the steady gaze of this Court, can't non-suit the respondents.

Plainly, along these lines, the resulting suit of 2008 raises an issue which is not quite the same as
that contained in the prior suit documented by a similar gathering in 2004. Likewise, the
previous choice in the judgment dated 27.4.2013 has proclaimed legitimate an exchange which is
precluded by law. A quick perusing of Section 45(2) of the Trade Marks Act clarifies that the
task deed, if unregistered, can't be conceded in proof by any Court in verification of title to the
brand name by the task, except if the Court itself coordinates in any case. It is clear, thusly, that
any dependence upon the task deed dated 8.10.2003 by the previous judgment can't be purified
by the supplication of res judicata, when dependence upon the task deed is precluded by law.

Judgment:

The appeal is allowed and the judgment of the trial Court and the first appellate Court are set
aside. Consequently, O.S. No.495 of 2008 filed by respondent No.1 will stand dismissed.

CONCLUSION

Drawbacks in the legal framework

• Globalization and between network on the planet has carried with itself an expansion in
trans-public exchanges among people and companies. Frequently, it so happens that the
court practicing purview over the case is not quite the same as the one where the
alleviation conceded is to be executed. In this manner, an expansion in the number has
prompted a considerable inquiry on the requirement and execution of a judgment passed
by an unfamiliar court inside the domain of India.
• The Indian Civil Procedure Code accommodates the execution of announcements and
decisions passed by unfamiliar courts. In spite of the fact that, at the hour of

25
 appropriation of the code no such need to execute unfamiliar announcements was felt as
India was under the territory of the imperialistic province of Britain.
• In this cutting edge and globalized world, the idea of correspondence has thwarted the
execution and implementation of declarations passed by the unfamiliar courts in India.
• Diplomatic destinations of the Indian Government has gagged the Code of Civil
Procedure with superfluous arrangement and necessities. Non-acknowledgment of
unfamiliar domain as a responding nation has prompted disappointment of valuing the
requests and decisions passed by its courts regardless of whether it meets the boundaries
of characterized under Section 13.
• The Indian Government should guarantee that specific revisions are made on these fronts
with the end goal that execution and administration of unfamiliar declarations and records
can be smoother, more financially savvy and less tedious.
BIBLIOGRAPHY

BOOKS

1. Black’s Law Dictionary (9th Standard edition).

2. All India Reporter (AIR).
3. Bluebook (19thEd.) Citation method.
4. Civil Procedure code with Limitation Act, 1963 by C.K. Takwani, Eastern Book Company.
5. Civil Procedure Code Bare Act, Universal Publication.

ONLINE ARTICLES & JOURNALS

1. https://indiankanoon.org/search/?formInput=res%20sub%20judice as on April 21, 2016.

2. http://www.lawnotes.in/Res_sub_judice as on April 21, 2016.
3. http://www.caclubindia.com/experts/res-judicata-vs-res-sub-judice-839725.asp as on April
22, 2016.
4. http://www.assignmentpoint.com/arts/law/the-code-of-civil-procedure-1908-lecture-03.html
5. http://www.legalserviceindia.com/article/l454-Res-Judicata.html as on April 23, 2016.

26
6. http://www.legalservicesindia.com/article/article/res-judicata-a-brief-study-1498-1.html
http://www.legalservicesindia.com/article/article/res-sub-judice-res-judicata-and-
constructive-res-judicata-1782-1.html as on April 24, 2016.
7. https://indiankanoon.org/search/?formInput=section%2010%20cpc+doctypes:supremecourt
as on April 24, 2016.
8. http://www.vakilno1.com/bareacts/laws/civil-procedure-code-1908.html as on April 25,
2016.
9. http://www.lawteacher.net/free-law-essays/constitutional-law/res-judicata-and-code-of-civil-
procedure-constitutional-law-essay.php as on April 26, 2016.
10. https://archive.org/stream/178395891CPCResJudicata/178395891-CPC-Res-
Judicata_djvu.txt as on April 27, 2016

27
2018LLB076 - CPC - 5th Semester - Research Paper
ORIGINALITY REPORT

24 %
SIMILARITY INDEX
22%
INTERNET SOURCES
0%
PUBLICATIONS
13%
STUDENT PAPERS

PRIMARY SOURCES

1
lawhelpbd.com
Internet Source 6%
2
www.du.ac.in
Internet Source 4%
3
Submitted to Birla Institute of Technology and
Science Pilani
3%
Student Paper

4
Submitted to Amity University
Student Paper 3%
5
www.legalservicesindia.com
Internet Source 3%
6
jajharkhand.in
Internet Source 2%
7
Submitted to Symbiosis International University
Student Paper 2%

Exclude quotes On Exclude matches < 2%

Exclude bibliography On