ASSIGNMENT1

Name – Shashank
Class – B.A. L.L.B.
Division – A
Roll Number – 33
Email Id – shashankk203@gmail.com
 Detailed notes on res judicata with special emphasis on Section 11 of CPC.
Distinguish between Res Judicata and Res Sub Judice.
1. Res Judicata is a phrase which is defined in Section 11 of the Civil Procedure Code has
been evolved from a Latin maxim, which stands that the thing has been judged which
means if an issue is brought in the court and it has already been decided by another court,
between the same parties and which has the same cause of action then the court will
dismiss the case before it as being useless. The concept of Res Judicata has high
significance both in Civil and Criminal System.
2. Provision of Section 11 enacts that once a matter is finally decided by a competent court,
no party can be permitted to reopen it in subsequent litigation. The basic objects and
operation of Section 11 was rightly pointed and observed by the Supreme Court in the
case of Satyadhan Ghosal vs. Deorajin Debi.
3. The Principle of Res-Judicata is based on the meet of giving finality to judicial decisions,
what it says is that once a res judicata, it shall not be adjudicated again. Primarily, it
applies as between past litigation and future litigation, on the basis of the question of facts
or the question of law- has been decided between the two parties in one suit or proceeding
and the decision is final, either because no appeal was taken to a higher court or because
the appeal got dismissed, or no appeal lies, neither party will be allowed for the execution
of future suit or proceedings between the same parties to canvas the matter again.
4. If we breakdown the words of Res Judicata, here the word Res means a subject matter or
dispute between the parties and the other word Judicata means adjudged or decided or
adjudicated, that is the matter is adjudicated or a dispute is decided.
Principle and Scope of Section 11
5. The rule of Res judicata is intended not only to prevent a new decision but also to prevent
a new investigation, so that the same person cannot be harassed again and again in
various proceedings upon the same question.
 The rule of res judicata is based on two important grounds namely:
a. The hardship to an individual, who could otherwise be vexed twice for the same cause
b. Public policy, which requires that there should be an end to litigation.

Conditions in Res Judicata:

6. The Plea of res judicata questions the jurisdiction of the court to try the proceedings.
However, the doctrine of res judicata will apply only if the requirements of Section 11 are
 fulfilled. To avail the plea and constitute a matter as res judicata under Section 11 the
following conditions must be satisfied:
7. The matter directly and substantially is in issue in the subsequent suit or issue must be the
same matter which was directly and substantially in issue either actually or constructively
in the former suit;
8. The former suit must have been a suit between the same parties or between the parties
under whom they or any of them claim
9. Such parties must have been litigating under the same title in the former suit.
10. The 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;
11. The matter directly and substantially in issue in the subsequent suit must have been heard
and finally decided by the court in the former suit.
12. It is necessary that the matter of res judicata should be raised by the party concerned.
Where the issue of res judicata was not raised by the concerned party, nor any such issue
was framed by the trial court, but the appellate court suo motto invoked the principle of
res judicata, this was held to be not proper.
13. Unless the issue of res judicata is raised by the parties, the court has no jurisdiction to
answer the issue of res judicata.
 Matter in issue:
14. The expression matter in issue means the rights litigated between the parties, i.e., the facts
on which the right is claimed and the law applicable to the determination of that issue.
Such issue may be an issue of fact, issue of law or mixed issue of law and fact.
15. A matter directly and substantially in issue in a former suit will operate as res judicata in
a subsequent suit. The term directly has been used in contradistinction to collaterally or
incidentally. A fact cannot be said to be directly in issue if the judgment stands whether
that fact exists or does not exist. No hard and fast rule can be laid down as to when a
matter can be said to be directly in issue and it depends upon the facts and circumstances
of each case.
16. A matter directly and substantially in issue may be so either actually or constructively.
According to Explanation III, a matter is actually in issue when it is alleged by one party
and denied or admitted by the other expressly or impliedly. As per Explanation IV, it is
constructively in issue when it might or ought to have been made a ground of attack or
defence in the former suit. The word might presupposes the party affected had knowledge
of the ground of attack or defence at the time of the previous suit. Ought to compel the
 party to take such grounds. The word and is to be read conjunctively. Unless it is proved
that the matter might and ought to have been raised in the previous litigation, there is no
constructive res judicata.
17. A party is bound to bring forward his whole case in respect of the matter in issue and
cannot abstain from relying upon or giving up any ground which is in controversy and for
consideration before a Court and afterwards make it a cause of action for a fresh suit.
Constructive res judicata is an artificial form of res judicata. It provides that if a plea
could have been taken by a party in a proceeding between him and his opponent, he
should not be permitted to take that plea against the same party in a subsequent
proceeding with reference to the same subject matter.
18. In the case of Workmen v. Board of Trustees, Cochin Port Trust the Supreme The court
observed that the principle of res judicata comes into play when by the judgment and
order a decision of a particular issue is implicit in it, i.e., it must be deemed to have been
necessarily decided by implication, then also the principle of res judicata on that issue is
directly applicable.
 Former Suit: Explanation 1:
19. Section 11 provides that no the court shall try any suit or issue in which the matter has
been directly and substantially in issue in a former suit between the same parties and has
been heard and finally decided. It is not the date on which the suit is filed that matters but
the date on which the suit is decided; so that even if a suit was filed later, it will be a
former suit within the meaning of Explanation I if it has been decided earlier.
 Same parties:
20. The second condition of res judicata is that the former suit must have been a suit between
the same parties or between the parties under whom they or any of them claim. This
condition recognises the general principle of law that judgments and decrees bind the
parties and privies. Therefore, when the parties in the subsequent suit are different from
the former suit, there is no res judicata.
 Parties under whom they or any of them claim:
21. The doctrine of res judicata operates not only against parties but their privies also, i.e.,
persons claiming under the parties to the decision. The object underlying this doctrine is
that if a proceeding originally instituted is proper, the decision given therein is binding on
all persons on whom a right or interest may devolve.
 Representative Suit: Explanation VI
22. Explanation VI to Section 11 deals with representative suits, i.e. suits instituted by or
against a person in his representative, as distinguished from individual capacity. It
provides that where persons litigate bonafide in respect of a public right or of a private
right claimed in common for themselves and others, and all persons interested in such
right shall, for the purposes of Section 11, be deemed to claim under the persons so
litigating.
23. Explanation VI thus, illustrates one aspect of constructive res judicata. Thus, where a
representative suit is brought under Section 92 of the Code and a decree is passed in such
a suit, the law assumes that all the persons who have the same interest as plaintiffs in the
representative suit were represented by the said plaintiffs and, therefore, are
constructively barred by res judicata by reagitating the matters directly and substantially
in issue in the former suit.
 The following conditions must be satisfied before a decision may operate as res
judicata under Explanation VI:
a) There must be a right claimed by one or more persons in common for themselves and
others not expressly named in the suit.
b) The parties not expressly named in the suit must be interested in such right.
c) The litigation must have been conducted bonafide and on behalf of all the parties
interested.
d) If the suit is under Order 1, Rule 8, all conditions laid down therein must have been
strictly complied with.
 Same title:
24. The third condition of res judicata is that the parties to the subsequent suit must have
litigated under the same title as in the former suit. The same title means the same
capacity. It refers to the capacity or interest of a party, i.e., whether he sues or is sued for
himself in his own interest or for himself as representing the interest of another or as
representing the interest of others along with himself and it has nothing to do with the
particular cause of action on which he sues or is sued. Litigating under the same title
means that the demand should be of the same quality in the second suit as was in the first
suit.
25. As held in Ram Gobinda v. Bhaktabala, the test for res judicata is the identity of title in
the two litigations and not the identity of the subject matter involved in the two cases. The
crucial test for determining whether the parties are litigating in a suit under the same title
 as in the previous suit is of the capacity in which they sued or were sued. The term same
title has nothing to do either with the cause of action or with the subject matter of 2 suits.

 Competent court:
26. The fourth condition of res judicata is that the court which decided the former suit must
have been a court competent to try the subsequent suit. Thus, the decision in a previous
suit by a court, not competent to try the subsequent suit, will not operate as res judicata.
The principle behind this condition is that the decision of the Court of limited jurisdiction
ought not to be final and binding on a court of unlimited jurisdiction.
27. The expression competent to try means competent to try the subsequent suit if brought at
the time the first suit was brought. In other words, the relevant point of time for deciding
the question of competence of the Court is the date when the former suit was brought and
not the date when the subsequent suit was filed.
 Right of Appeal: Explanation II
28. Explanation II to Section 11 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. The question of whether there is a bar of res
judicata does not depend on the 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.
 Heard & finally decided:
29. The fifth and final condition of res judicata 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. The expression heard and finally decided means a matter on which Court has
exercised its judicial mind and has after argument and consideration come to a decision
on a contested matter. A matter can be said to have been heard and finally decided
notwithstanding that the former suit was disposed of ex parte; or by failure to produce
evidence (Order 17 Rule 3); or by a decree on an award; or by oath tendered under the
Indian Oaths Act, 1873.
30. In order that a matter maybe said to have been heard and finally decided, the decision in
the former suit must have been on merits. Thus, if the former suit was dismissed by a
court for the want of jurisdiction, or for default of plaintiffs appearance, or on the ground
of misjoinder or non-joinder of parties, or on the ground that the suit was not properly
 framed, or that it was premature, or that there was a technical defect, the decision not
being on merits, would not operate as res judicata in a subsequent suit.

 Difference between Res Judicata and Res Sub Judice

Sr. Res Judicata Res Sub Judice

No.

1. Section 11 deals with the Res Judicata, Section 10 deals with the Res Sub Judice,

2. Res judicata is applicable when the matter is In the case of Res Sub Judice, it relates to a matter, which
already decided by the court of competent is pending in the Court of competent jurisdiction,
jurisdiction,

3. Res Judicata prevents the trial of a suit or issue in It bars the trial of a suit in which the matter is pending for
which the matter in issue has already been decision in the previous suit,
decided in a previous suit,

4. Conditions:- Conditions:-

1.      The former suit must have been decided by 1.      There must be two suits one previously instituted
the court of competent jurisdiction. and the other subsequently instituted.

2.      The matter in issue in the subsequent suit 2.      The matter in issue in the subsequent suit must be
must be the same matter which was directly and directly and substantially in issue in the previous suit,
substantially in issue, either actually or
3.      Both the suits must be between the same parties,
constructively, in the former suit.
4.      The court in which the previous suit is instituted
3.      Both the suits must be between the same
must have jurisdiction to try it,
parties,
5.      Both parties must be litigating under the same title
4.      The court which decided the former suit
in both the suits.
must have been a court of competent jurisdiction,

5.      Both the parties must have litigated under

the same title in the former suit. “Same title”
means in the same capacity.