New Law College

Internal Submission – Civil

Procedure Code

Section 10
& 11

Mayank Sharma
TYLLB, Div. A
Roll No. 051
TABLE OF CONTENTS

SECTION 10 – RES SUB-JUDICE

§ Introduction
§ Objective
§ Conditions for the applicability of Sec. 10
§ Section 10 applies to legally maintainable suits
§ Section 10 applies only to suits filed in civil courts
§ No bar to file second suit
§ Stage
§ Question of Jurisdiction
§ Validity of decree passed disregarding this section
§ The subject matter of both suits must be the same
§ Consolidation of suits
§ Inherent power to grant stay
§ Additional Case Laws
SECTION 11– RES JUDICATA
§ Introduction
§ Objective of res judicata
§ Essential conditions to res judicata
§ Exceptions to Res Judicata
§ Criticisms
BASIC DIFFERENCE BETWEEN RES-JUDICATA AND RES-SUB JUDICE
CONCLUSION
BIBLIOGRAPHY
 SECTION 10 – RES SUB-JUDICE
§ Introduction
Sec.10 of the Code of Civil Procedure, 1908 provides the rule with regard to stay of suits where
things are under consideration or pending adjudication by a court.
The section reads as:
“No Court shall proceed with the trial of any suit in which the matter in issue is also directly
and substantially in issue in a previously instituted suit between the same parties, or between
parties under whom they or any of them claim litigating under the same title where 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.”
A plain reading of Sec. 10 of the Code of Civil Procedure makes clear that where the subject
matter of the suit is one and the same and the parties are also the same, under such
circumstances, if there are two suits between the parties, it is subsequent suit which has to be
stayed and not the previous one.
The purpose of the section is to bring finality in the judgment and to avoid the contradictory
decision by the two different court, as there is a very good possibility that in case when matter
is simultaneously being decided by different courts of concurrent jurisdiction, the courts may
come up with different decisions and then it will be very difficult to finalize which decisions
to be abided by.
The section does not of course empower one court to stay the proceedings of another court. For
example, a district court exercising insolvency jurisdiction under the Provincial Insolvency
Act, 1920, cannot under this section stay a suit pending against the insolvent in a subordinate
court. However, since the provisions of the section are mandatory, the court before which the
subsequent suit is pending ought to stay it where all the conditions laid down in the section
exist.
§ Objective
The object underlying Sec. 10 is to avoid two parallel trials on the same issue by two courts
and to avoid recording of conflicting findings on issues which are directly and substantially in
issue in a previously instituted suit. It is to obviate conflict of decisions of two
contradictory decrees being passed in respect of the same subject-matter between the same
parties that the present section has been enacted.
 Thus, the basic object of Sec. 10 is to protect a person from multiplicity of proceedings between
the same parties.
Hence, the two fold objects are:
 Avoid wasting court resources.
 Avoid conflicting decisions.

§ Conditions for the applicability of Sec. 10

In order to attract the application of this section it is necessary that the following conditions
must be fulfilled:
(1) A previously instituted suit is pending in a court;
(2) The matter in issue in the second suit is also directly and substantially in issue in a
previously instituted suit;
(3) The previously instituted suit must be pending in the same court in which the subsequent
suit is brought, or in any other court in India or in any court beyond the limits of India
established or continued by the Central Government or in the Supreme Court;
(4) The court in which the previous suit is pending has jurisdiction to grant the relief claimed
in the subsequent suit;
(5) The parties in the two suits are the same; and
(6) The parties must be litigating under the same title in both the suits.

§ Section 10 applies to legally maintainable suits

Section 10 is not the permissive provision, but is a restrictive provision. Section 10 applies only
to those suits which are legally maintainable. Section 10 cannot be invoked to make the
subsequently filed suit maintainable.
Despite all provisions to avoid more than one suit some unavoidable circumstances permits
involvement of same issues in two suits. Those suits are like cross suits or where law permits
second suit specifically like withdrawal of suit with permission to file fresh suit or due to
accrual of cause of action or entitlement for the reliefs subsequent to filing of earlier suit to the
plaintiff and plaintiff had no right to claim relief at the time of filing of earlier suit and where
court either cannot grant relief after taking note of subsequent event or the court refuses to
entertain subsequent event for molding the relief such suits are maintainable and are
permissible.
 Even where such suits are lawfully maintainable still law, under Sec. 10 prohibits simultaneous
trial of issue and if, due to any reason, trial of suit proceeded, the decision given on an issue
which is earlier in time has been made final by Sec. 11 of the Code of Civil Procedure.
When specific provisions of law prohibits trial of even maintainable suit, then interpreting Sec.
10 and 11 of the Code of Civil Procedure as a permissive provision making maintainable two
suits simultaneously will be against the legislative intention.

§ Section 10 applies only to suits filed in civil courts

Sec. 10 suggests that it is preferable to a suit instituted in the civil court and it cannot apply to
proceedings of other nature instituted under any other statute. The object of Sec.10 is to prevent
courts of concurrent jurisdiction from simultaneously trying two parallel suits between the
same parties in respect of the same matter in issue.
In a recent case, the Delhi High Court declined to apply this section in an application under the
Arbitration Act on the ground that whereas under Sec. 33 of that Act the court can only declare
as to the existence or otherwise of an arbitration agreement, relief awardable under Sec. 20 is
more comprehensive.
In simultaneous prosecution of the defendant in the criminal case, the civil suit on the same
subject-matter can be stayed only under very exceptional and compelling circumstances. There
is no question to stay the civil suit instituted against defendants during the pendency of the
criminal case when they have filed their written statement in the civil suit, no question of any
embarrassment or premature disclosure of their defense in the criminal case arises in this case.
Where in a suit--application for stay of suit is filed on ground that subject-matter of suit and
second appeal was same, however, applicants failed to discharge their onus by establishing that
both suits arose out of same cause of action, same subject-matter and same relief. In fact, cause
of action in subsequent suit arose when order in suit under second appeal was passed. The
application for stay of subsequent suit was found liable to be dismissed.
§ No bar to file second suit
Though, the heading of this section is ‘stay of suit’, it does not operate as a bar to the institution
of the subsequent suit. It is only the trial of the suit that is not to be proceeded with.
§ Stage
The application under Sec. 10 of the Code of Civil Procedure is to be decided after filing of the
written statement. However, that does not mean that the court has no jurisdiction to entertain
the application prior to filing of the written statement.
 In a given case, the court may decide the question before filing of the written statement if the
defendant makes available the copy of the plaint of the earlier suit and the other documents
which enables the court to decide as to what the dispute between the parties is.
In case, if the court is not in a position to decide as to what dispute between the parties is on
the basis of the plaint of previously instituted suit, the court may postpone the petition till the
filing of the written statement, because a proceeding instituted first in time cannot be stayed
and if anything in terms of Sec.10 of the Code of Civil Procedure which is only a subsequent
proceeding as between the parties that can be stayed.
For maintaining an application under Sec. 10, the defendant in the suit concerned need not first
file his written statement; the Sec. 10 application can be taken out even before filing the written
statement.
It is not necessary for the defendant to move the court under this section until he has filed his
written statement in the later case.
§ Question of Jurisdiction
Jurisdiction with reference to the subject matter of a claim depends upon the allegations in the
plaint and not upon allegations in the written statement.
The question of jurisdiction raised by the defendant is a question that is virtually between the
plaintiff and the court itself. The plaintiff invokes the jurisdiction of the court and the court has
always jurisdiction to decide for itself whether it has jurisdiction to try the suit before it.
There is nothing in Sec. 10 of the Code of Civil Procedure to show or suggest, that, if an issue
of jurisdiction has been raised in a previously instituted suit, the defendant cannot invoke
provision of Sec. 10 of the Code of Civil Procedure in subsequent suit unless he withdraws or
waives that objection. An application cannot be dismissed as premature on ground that copy of
plaint was not produced or written statement was not filed in instant suit.
§ Validity of decree passed disregarding this section
This section enacts merely a rule of procedure and a decree therefore passed in contravention
of it is not a nullity and cannot be disregarded in execution proceedings. It can be waived,
although the section is so worded as not to leave any discretion in the court where its conditions
are satisfied.
The object of the section is to prevent courts of concurrent jurisdiction from simultaneously
trying two parallel suits in respect of the same matter in issue. The section enacts merely a rule
of procedure and a decree passed in contravention thereof is not a nullity. It is not for a litigant
to dictate to the court as to how the proceedings should be conducted, it is for the court to
decide what will be the best course to be adopted for expeditious disposal of the case.
§ The subject matter of both suits must be the same
The key words in Sec. 10 are ‘the matter in issue is directly and substantially in issue’ in the
previous instituted suit. The words ‘directly and substantially in issue’ are used in contradiction
to the words ‘incidentally or collaterally in issue’.
Even if the cause of action and the relief prayed for or some of the issues in the former and
subsequent suits may differ, that will not be a ground for non-application of Sec. 10 if the final
decision in the former suit would operate as res judicata in the subsequent suit.
In a case at Calcutta High Court, Rankin CJ laid stress on the identity of the subject matter.
When the two suits were for the recovery of cesses due for different periods, the learned Chief
Justice said that a judgment for the recovery of subsequent cesses does not differ merely as
being for a different form of relief. It is the same kind of relief for an entirely separate subject
matter, namely, a debt which was not in existence at all at the time of the previous suit. It does
not follow, because the words ‘the same relief’ are no longer in the section, that Sec. 10 is
applicable to suits for recovery of successive rents.
A suit was filed alleging infringement of plaintiff-company's right by defendant company by
using trade name of medicine and selling the same in wrapper and carton of identical design
with the same colour combination, etc, as that of plaintiff-company. A subsequent suit was
filed in a different court by the defendant company against Plaintiff Company with same
allegations. Held, subsequent suit should be stayed. A simultaneous trial of two suits in
different courts might result in conflicting decision as there was complete identity of issue in
the two suits.
§ Consolidation of suits
This method is convenient to the litigants as the evidence is recorded in two or more suits and
the deposition of the same witness in different suits is avoided, saving the time of litigants,
lawyers and the court. However, it is to be noted that if the two suits pending between the
parties are at different stages of the trial, say, for example, one suit is pending at a pre-issue
stage and the other at the defendant’s evidence, there is no point in consolidation of these suits.
Two suits were filed between same parties, involving common question arising between them.
It was held that consolidation and simultaneous hearing of the suits is not barred. Section
10 merely lays down a procedure and does not vest any substantive right in the parties. The
claim in the later suit, was his defence in earlier suit. The court had inherent powers to
consolidate the two suits and to direct analogous hearing of the same, in the ends of justice.
This section does not bar the power of the court to consolidate for the purpose of hearing an
earlier suit and a later suit.
§ Inherent power to grant stay
In the case of Manohar Lal Chopra v. Rai Bahadur Rao Seth Hiralal , it has been held that
inherent jurisdiction of the court to make orders ex debito justitiae is affirmed by Sec. 151 of
the Code of Civil Procedure but that jurisdiction cannot be exercised so as to nullify the
provisions of the Code of Civil Procedure.
Where the Code of Civil Procedure deals expressly with a particular matter, the provision
should normally be regarded as exhaustive. In the present case, as stated above, Sec. 10 has no
application and consequently, it was not open to the high court to by-pass s 10 of the Code of
Civil Procedure by invoking Sec. 151 of the Code of Civil Procedure. It is only in case where
the proceedings are fraud, vexatious or want of bona fide, malicious & improper, then it comes
within the meaning of abuse of the process of the court.
§ Additional Case Laws
[1] Escorts Construction Equipment Ltd. v. Action Construction Equipment Pvt. Ltd.
Facts
The defendant had filed, for stay of present suit, an application under Sec. 10 of C.P.C., on
ground that the matter in controversy is pending in Jamshedpur Court also. This was opposed
by plaintiff on ground that, the defendants had raised issue of jurisdiction of Jamshedpur Court
to entertain same suit; and that application under Sec. 10 of C.P.C. can be filed in the present
suit, only if objection with respect to lack of jurisdiction was withdrawn in Jamshedpur Court.
Judgment (Relevant Excerpt)
Delhi High Court held that the conditions requisite to invoke Sec. 10 of C.P.C. are:
 Matter in issue in both the suits to be substantially the same.
 Suit to be between the same parties or parties litigating under them.
 Previously instituted suit to be in the same Court or a different Court, which has
jurisdiction to grant the relief asked.
There is nothing to the effect that defendant should not question the competency of previous
Court in the previously instituted suit, and there remains the fact that the plaintiff in their
defense against Sec.10 of C.P.C., had not stated the Jamshedpur Court is competent. Thus,
relief was granted to the defendant.
[2] Pukhraj D. Jain v. G. Gopalakrishna (Landmark Case)
Facts
The appellant were the owners of the suit property (residential building at Jayanagar,
Bangalore). They executed an agreement to sell the suit property in favor of Dr. G.
Gopalakrishna (Respondent No. 1) for a consideration of Rs. 1,42,500/- and received Rs.
42,500/- by way of advance. The respondent No. 1 was also put in possession of the ground
floor of the property.
After sometime, the respondent No. 1 issued a legal notice rescinding the contract and claimed
refund of the advance amount paid by him. He filed a suit against the appellant claiming the
amount which had been paid by way of advance. After considerable period of time, respondent
No. 1 moved an amendment application seeking permission to convert the suit into one for
specific performance of the agreement of sale.
This application was rejected by the trial court on the ground that the suit for specific
performance had become barred by limitation. The Revision Petition preferred against the said
order was dismissed by the High Court at the admission stage.
The appellant (Pukhraj D. Jain and his four sons) purchased the property in dispute from the
original owners, for Rs. 3,60,000/- and they were put in possession of the first floor of the
building.
Thereafter, Respondent No. 1 filed an amendment application seeking an amendment of the
plain and claiming an additional amount of Rs. 125 towards the cost of the legal notice. The
amendment application was allowed and the respondent No. 1 was required to pay an additional
court fee of Rs. 12.50 in view of the enhanced claim. However, instead of paying aforesaid
amount, the respondent No. 1 filed a memo stating that he was not in a position to pay the court
fee and as such the plaint may be rejected being deficiently stamped. The trial court decreed
the suit for recovery of the amount.
Though the suit filed by respondent No. 1 was decreed yet he preferred a revision petition
challenging the judgment and decree passed in his favour. The High Court though observed
that it was an unusual revision filed by a plaintiff yet allowed the same, set aside the judgment
and decree of the trial court and rejected the plaint.
The appellants after execution of the sale deed in their favor filed a suit seeking eviction of
respondent No. 1 from the ground floor of the house in dispute and also for mesne profits.
The respondent No. 1 filed another suit being against appellant in the Court of City Civil Judge,
Bangalore for specific performance of the agreement. In this suit issue No.3 relating to the bar
of limitation and issue No.4 relating to the maintainability of the suit were framed.
The respondent No. 1 also filed an application under section 10 C.P.C. seeking stay of his own
suit on the ground that the issues involved were also directly and substantially in issue in a
previously instituted suit being which had been filed by the appellants for his eviction from the
ground floor of the house and for possession.
The Addl. City Civil Judge, Bangalore dismissed the suit after deciding issues wherein he held
that the suit was barred by limitation and the same was not maintainable.
The respondent No. 1 preferred an appeal in the High Court against the judgment and decree
of the Addl. City Civil Judge, Bangalore. The High Court allowed the appeal and set aside the
judgment and decree of the Addl. City Civil Judge and remanded the matter to the trial court
to dispose of the application moved by the respondent No. 1 (plaintiff) under section 10 of
C.P.C. for stay of his suit.
It is this judgment and order which is subject matter of challenge in the present appeal.

Issue Raised
Whether application under Sec.10 of C.P.C. should be considered at first instance before
deciding issues?

Judgment (Relevant Excerpt)

The proceedings in the trial of a suit have to be conducted in accordance with provisions of
the Code of Civil Procedure. Sec. 10 of C.P.C. no doubt lays down that no court shall proceed
with the trial of any suit in which the matter in issue is also directly and substantially in issue
in a previously instituted suit between the same parties or between 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.
However, mere filing of an application under section 10 C.P.C. does not in any manner put an
embargo on the power of the court to examine the merits of the matter. The object of the section
is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in
respect of the same matter in issue. The section enacts merely a rule of procedure and a decree
passed in contravention thereof is not a nullity. It is not for a litigant to dictate to the court as
to how the proceedings should be conducted, it is for the court to decide what will be the best
course to be adopted for expeditious disposal of the case.
In a given case the stay of proceedings of later suit may be necessary in order to avoid
multiplicity of proceedings and harassment of parties.
However, where subsequently instituted suit can be decided on purely legal points without
taking evidence, it is always open to the court to decide the relevant issues and not to keep the
suit pending which has been instituted with an oblique motive and to cause harassment to the
other side.
Ratio Decidendi
Mere filing of an application under Sec. 10 of C.P.C. does not in any manner put an embargo
on power of court to examine merits of matter.

[3] Prakash Gangappa Kadahatti v. Awwakka Gangappa Kadahatti (Recent Case Law)
Facts
A suit was filed by Smt. Awwakka (Respondent) seeking a declaration that adoption deed
allegedly executed by her was illegal and void ab initio. A decree of permanent injunction was
sought against the petitioner herein, who claimed that he was the duly adopted son under the
said adoption deed, restraining him from interfering with peaceful possession and enjoyment
of the suit properties.
After about two years, petitioner on the filed a suit seeking a declaration that he was the duly
adopted son of deceased Gangappa Kadahatti and Smt. Avvakka (Respondent). He also sought
for a permanent injunction restraining Respondent from alienating the suit property. In the said
suit Resopdent filed an application under Sec. 10 of C.P.C. seeking stay of the proceedings
contending inter alia that questions in issue in the subsequent case were directly and
substantially in issue in the suit instituted earlier by her and, therefore, the second suit had to
be stayed as otherwise it would lead to inconsistent or contradictory judgments. Trial Court
had allowed the said application and has stayed the second suit. Aggrieved by the same, present
writ petition was filed by the alleged adoptive son.
Judgment (Relevant Excerpt)
The issue that directly and substantially falls for consideration in the two suits is with regard
to validity of the adoption of the petitioner by Respondent and her husband. Respondent has
filed the earlier suit seeking a declaration that the adoption was illegal and void ab initio. The
second suit is based on the same adoption deed seeking a declaration that adoption was valid.
In such circumstance, if both the suits are permitted to be tried parallel. There is every
likelihood of inconsistent and contradictory judgments by the two different Courts. Therefore,
the matter squarely falls under Sec. 10 of C.P.C.
[4] Jayanta Nandi v. Probir Nandy (Recent Case Law)
Facts
Opposite parties acquired right, title, interest and possession of schedule property on strength
of gift deed executed by deceased-Owner but said deceased-Owner challenged gift deed in a
suit. However, said suit was dismissed on contest. After demise of deceased-Owner, opposite
parties granted some time to petitioner to vacate schedule property who was inducted into the
same by deceased-Owner but petitioner had not vacated premises and hence, opposite parties
 filed a suit for eviction of petitioner. Later, petitioner along with other legal heirs of deceased-
Owner filed another suit challenging judgment and decree passed in the previous suit on
various grounds and also filed application with prayer to stay suit. However, Trial Court
rejected said application under Sec. 10 read with Sec. 151 of C.P.C. and hence, instant the
instant application was filed.
Issue Raised
Whether application under Sec.10 of C.P.C. can be allowed?
Judgment (Relevant Excerpt)
Matter in issue in both the suits are not directly and substantially identical though it could be
that one of the issues regarding validity of impugned deed could be incidentally or co-laterally
in issue in both suits. Hence, Trial court is perfectly justified in rejecting application under Sec.
10 read with Sec. 151 of C.P.C. holding inter alia that the matter in issue in both suits is not
directly and substantially identical. Sec. 10 of C.P.C. would apply only if whole of subject
matter in both the proceedings is identical. Application was dismissed.

SECTION 11– RES JUDICATA

§ Introduction
The concept of Res Judicata finds its evolvement from the English Common Law system, being
derived from the overriding concept of judicial economy, consistency, and finality. From the
common law, it got included in the Code of Civil Procedure,1908 and which was later as a
whole was adopted by the Indian legal system.
The Section read as:
“No Court shall try any suit or issue in which the matter directly and substantially in issue has
been directly and substantially in issue in a former suit between the same parties, or between
parties under whom they or any of them claim, litigating under the same title, in a Court
competent to try such subsequent suit or the suit in which such issue has been subsequently
raised, and has been heard and finally decided by such Court.”
It essentially meant to:
1. Once a matter is finally decided by a competent court, no party can be permitted to reopen
it in subsequent litigation.
2. A final judicial decision pronounced by a judicial tribunal having competent jurisdiction
over the cause or matter in litigation, and over the parties thereto.
As explained by Justice Das Gupta in the case of Satyadhyan Ghosal v. Deorjin Debi that
“When a matter, whether on a question of fact or law, has been decided between two parties in
 one suit and the decision is final, either because no appeal was taken to the higher court, or no
appeal lies in such case, neither party will be allowed in the future suit between the same parties
to canvass the matter again.”
The important words are “has been heard and finally decided”. The bar applies only if the
matter directly and substantially in issue in the former suit has been heard and finally decided
by a court competent to try such suit. That clearly means that on the matter or issue in question
there has been an application of the judicial mind and a final adjudication made.

§ Objective of res judicata

The doctrine of res judicata is based on three maxims:
a) Nemo debet bis vexari pro una et eadem causa (no man should be punished twice for the
same cause);
b) Interest reipublicae ut sit finis litium (it is in the interest of the state that there should be an
end to a litigation);
c) Res judicata pro veritate occipitur (a judicial decision must be accepted as correct).
Thus, the doctrine of res judicata is the combined result of the public policy reflected in maxims
(b) and (c) and private justice expressed in the maxim (a), and they apply to all judicial
proceedings whether civil or criminal.
In Lal Chand v. Radha Krishan, this principle of res judicata is founded on justice, equity and
good conscience. Once a final judgment has been announced in a lawsuit, the subsequent
judges who are confronted with a suit that is identical to or substantially the same as the earlier
one, they would apply the Res Judicata doctrine ‘to preserve the effect of the first judgment’.
This is to prevent injustice to the parties of a case supposedly finished, but perhaps mostly to
avoid unnecessary waste of resources and time of the Judicial System.
Therefore, the same case cannot be taken up again either in the same or in the different Court
of India. This is just to prevent them from multiplying judgments, so a prevailing plaintiff may
not recover damages from the defendant twice for the same injury.
For making Res Judicata binding, several factors must be met up with:

 identity in the thing at suit;

 identity of the cause At suit;
 identity of the parties to the action;
 identity in the designation of the parties involved;
 whether the judgment was final;
  whether the parties were given full and fair opportunity to be heard on the issue.
Regarding designation of the parties involved, a person may be involved in an action while
filling a given office and may subsequently initiate the same action in a differing capacity. In
that case Res Judicata would not be available as a defense unless the defendant could show that
the differing designations were not legitimate and sufficient .
Therefore, Res Judicata in a nut shell is a judicial concept wherein the Courts do not allow a
petition to be filed in the same or to the other Court for the doctrine of Res Judicata would
apply and the party would not be allowed to file the petition or to continue the petition (as the
case may be).
§ Essential conditions to res judicata
For the application of this section, the following conditions must be satisfied:
(1) There must be two suits, one previously instituted and the other subsequently instituted.
(2) The matter in issue in the subsequent suit must be directly in the issue in the previous suit.
(3) Both the suits must be between the same parties or their representatives.
(4) The court which decided the previous suit is must have jurisdiction to grant the relief
claimed in the subsequent suit.
(5) Such parties must be litigating under the same title in both the suits.

Former Suit: Explanation I

Section 11 provides that no court shall try any suit or issue in which the matter has been directly
and substantially in issue in a former suit between same parties and has been heard and finally
decided. Explanation I to section 11 provides that the expression ‘former suit’ shall denote a
suit which has been decided prior to suit in question whether or not it was instituted prior
thereto.
Right of Appeal: Explanation II
Explanation II makes it clear that for purpose of res judicata, the competence of court shall be
determined irrespective of any provision as to right of appeal from decision of such court.
The question whether there is a bar of res judicata does not depend on existence of a right of
appeal but on the question whether the same issue, under the circumstances mentioned in
section 11 has been heard and finally decided.
Matter Directly and Substantially in issue: Explanation III
A matter directly and substantially on issue in former suit will operate as res judicata in
subsequent suit.
Directly means at once, immediately, without intervention. The term has been used in
contradistinction to collateral or incidental issue.
Substantially means essentially, materially or in a substantial manner. The question whether
matter is direct and substantial depend on effect of decision given on such issues on final
judgement.
Matter constructively in issue: Explanation IV
A matter directly and substantially in issue may again be so either actually or constructively.
A matter is actually in issue when it is alleged by one party and denied or admitted by other. It
is constructively in issue when it might or ought to have been made a ground of attack or
defense in the former suit. Explanation IV to section 11 lays down that any matter which might
or ought to have been made a ground of attack or defense in former suit but which has not been
made a ground of attack or defense, shall be deemed to have been a matter directly and
substantially in issue in such suit.
The principal underlying this explanation is that where parties have been given a chance of
controverting a matter, that should be taken to be the same thing as if the matter had been
actually controverted and decided. The primary objective is to cut short litigation by
compelling parties to rely upon all grounds of attack or defense and if they fail to do so it would
be treated to have been raised and decided.
Relief claimed but not granted : Explanation V
It provides that if a relief is claimed in a suit, but is not expressly granted in the decree, it will
be deemed to have been refused and the matter in respect of which the relief is claimed will be
res judicata.
Representative suit: Explanation VI
It deals with representative suits i.e suits instituted by or against a person in his representative
as distinguished from individual capacity.
The following conditions must be satisfied before a decision may operate as res judicata under
explanation VI
i. There must be a right claimed by one or more persons in common for themselves and
others not expressly named in the suit.
ii. The parties not expressly named must be interested in such right.
iii. The litigation must have been conducted bona fide and on behalf of all parties interested
iv. If suit is under order 1 rule 8 all conditions laid down therein must have strictly
compiled with.
Execution proceedings: Explanation VII
 This explanation specifically provides that the provisions of section 11 will directly apply
to execution proceedings also.
Competent Court: Explanation VIII
In order that a decision in a former suit may operate as res judicata, the court which
decided that suit must have been either
 A court of exclusive jurisdiction
 A court of limited jurisdiction
 A court of competent jurisdiction

In Pukhraj D. Jain v. G. Gopalakrishna, it was held that if the court is satisfied that subsequent
suit can be decided purely on the legal point, it is open to the court to decide such suit. The
provisions of Sec. 11 of the Code of Civil Procedure are not at all exhaustive even though it
has very wide and enlarged amplitude.
The section “does not affect the jurisdiction of the Court” but “operates as a par to the trial” of
the suit or issue, if the matter in the suit was directly and substantially in issue (and finally
decided) in the previous suit between the same parties litigating under the same title in a Court,
then they are not competent i.e. they become barred to try the subsequent suit in which such
issue has been raised.
Thus, this doctrine of Res Judicata is a fundamental concept based on public policy and private
interest. It is conceived in the larger public interest, which requires that every litigation must
come to an end. It therefore, applies to civil suits, execution proceedings, arbitration
proceedings, taxation matters, writ petitions, administrative orders, interim orders, criminal
proceedings, etc.
An ordinary litigation being a party or claiming under a party of a former suit cannot avoid the
applicability of Sec. 11 of C.P.C. as it is mandatory except on the ground of fraud or collusion
as the case may be. The onus of proof lies on the party relying on the theory of Res Judicata.
The provisions of Sec. 11 of C.P.C. are “not directory but mandatory”. The judgment in a
former suit can be avoided only by taking recourse to Sec. 44 of the Indian Evidence Act on
the ground of fraud or collusion.
The basic point involved in the Nature of the doctrine of Res Judicata is that the doctrine tries
to bring in natural and fair justice to the parties and that too by barring the other party to file a
multiple number of suits either for justice or for harassing the other party.
§ Exceptions to Res Judicata
 However, there are limited exceptions to Res Judicata that allow a party to attack the validity
of the original judgment, even outside of appeals. These exceptions - usually called collateral
attacks - are typically based on procedural or jurisdictional issues, based not on the wisdom of
the earlier court’s decision but its authority or competence to issue it. A collateral attack is
more likely to be available (and to succeed) in judicial systems with multiple jurisdictions, such
as under federal governments, or when a domestic court is asked to enforce or recognize the
judgment of a foreign court.
In addition, in cases involving due process, cases that appear to be Res Judicata may be re-
litigated. An instance would be the establishment of a right to counsel. People who have had
their liberty taken away (that is, imprisoned) may be allowed to be re-tried with a counselor as
a matter of fairness.
In the case of Jallur Venkata Seshayya v. Thadviconda Koteswara Rao, a suit was filed in the
Court for the purpose of declaring certain temples public temples and for setting aside
alienation of endowed property by the manager thereof. A similar suit was dismissed by the
Court two years ago and the plaintiffs here contended that it was the gross negligence on the
part of the plaintiffs (of the previous suit) and hence the doctrine of Res Judicata should not be
applied. But, the Privy Council said that finding of a gross negligence by the trial court was far
from a finding of intentional suppression of the documents, which would amount, to want of
bona fide or collusion on the part of the plaintiffs in prior suit. There being no evidence in the
suit establishing either want of bona fide of collusion on the part of plaintiffs as res judicata.
In the case of Beliram and Brothers v. Chaudari Mohammed Afzal, it was held that where a
minors suit was not brought by the guardian of the minors bona fide but was brought in
collusion with the defendants and the suit was a fictitious suit, a decree obtained therein is one
obtained by fraud and collusion within the meaning of the Indian Evidence Act, 1872, Sec. 44
and does not operate Res Judicata. The principle of Res Judicata in Code of Civil Procedure,
1908, Sec. 11 is modified by the Indian Evidence Act, 1872, Sec. 44 and the principles will not
apply if any of the three grounds mentioned in Sec. 44 exists.
In Forward Construction Co. v. Prabhat Mandal, the Supreme Court was directly called upon
to decide the question. The apex court held that the principle would apply to public interest
litigation provided it was a bona fide litigation.

§ Criticisms

Res Judicata does not restrict the appeals process, which is considered a linear extension of the
same lawsuit as the suit travels up (and back down) the appellate court ladder. Appeals are
considered the appropriate manner by which to challenge a judgment rather than trying to start
a new trial. Once the appeals process is exhausted or waived, Res Judicata will apply even to a
judgment that is contrary to law.
There are limited exceptions to Res Judicata that allow a party to attack the validity of the
original judgment, even outside of appeals. These exceptions—usually called collateral
attacks—are typically based on procedural or jurisdictional issues, based not on the wisdom of
the earlier court's decision but its authority or on the competence of the earlier court to issue
that decision. A collateral attack is more likely to be available (and to succeed) in judicial
systems with multiple jurisdictions, such as under federal governments, or when a domestic
court is asked to enforce or recognize the judgment of a foreign court.
In addition, in matters involving due process, cases that appear to be Res Judicata may be re-
litigated. An example would be the establishment of a right to counsel. People who have had
liberty taken away (i.e., imprisoned) may be allowed to be re-tried with a counselor as a matter
of fairness.

BASIC DIFFERENCE BETWEEN RES-JUDICATA AND RES-SUB JUDICE

1) Res-judicata deals with cases, which have already been decided by a Court of competent
jurisdiction, but Res-sub judice deals with cases which are pending before the Court of
competent jurisdiction.
2) In Res-judicata the Court shall not try at all a case, which has previously tried, while in
Res-sub judice the Court shall not proceed with a case, in-respect of which a suit is already
pending.
3) Res-judicata prohibits second trial of the same dispute between same parties, while Res-
sub judice prohibits proceedings of two parallel suits between same parties.

So it can be concluded that by applicability of Res- judicata the Court shall not try a suit, which
has already been tried, on the other side by applicability of Res-subjudice the Court shall not
proceed-with a suit which is already pending before the Court of competent jurisdiction. The
main spirit behind these two principles is that no person should be call in question twice for
the same cause of action.

CONCLUSION
Sec. 10 deals with the doctrine of res sub-judice and Sec. 11 deals with the doctrine of res-
judicata. Sec. 10 provides rules with regard to stay of suits where things are under consideration
or pending adjudication by a court. On the other hand section 11 provides the rule that relates
to a matter already adjudicated by a court. It bars the trial of a suitor an issue in which the
matter directly and substantially in issue has already been adjudicated upon in a former suit.
Sec. 10 and Sec. 11 are mandatory. Res sub-judice in latin means “under judgement”. It denotes
that a matter or case is being considered by court or judge when two or more cases are filed
between same parties on the same subject matter, the competent court has power to stay
proceeding. However the doctrine of res-subjudice means stay of suit. This code provides rules
for the civil court in respect of the doctrine of res subjudice. This rule applies to trial of suit
and not the institution of suit.
The Doctrine of Res Judicata can be understood as something which restrains the either party
to “move the clock back” during the pendency of the proceedings. The extent of Res Judicata
is very-very wide and it includes a lot of things which even includes Public Interest Litigations.
This doctrine is applicable even outside the Code of Civil Procedure and covers a lot of areas
which are related to the society and people. The scope and the extent has widened with the
passage of time and the Supreme Court has elongated the areas with its judgments.