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Doctrine of Res-subjudice Stay of suit Section 10 of C.P.C.

10 Stay of suitNo 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 [India] established or continued by the Central Government and having like jurisdiction, or before 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 cause of action Important Points :- Section 10 of the C.P.C. deals with the stay of the suit and it states that no court shall proceed with the trial of any suit in which the matter in issue (directly or substantially in issue) in a previously instituted suit between the same parties and the court in which the previous suit is pending is competent to grant relief.

Essential Condition for Application of Section 10


There are two suits, one is previously instituted and other subsequently instituted. The matter in issue in the subsequent suit is (directly and substantially in issue) in the previous suit. The parties to both the suit are the same. The previously instituted suit must be pending. The court in which the previous suit is pending has jurisdiction to grant the relief claimed in the subsequent suit. Both the parties are litigating under the same title in both the suits.

Illustration

B, residing in calcutta, has an agent A at Calicut employed to sell his goods there. A sues B in Calicut claiming a balance due upon an account in respect of dealing between him and B. During the pendency of the suit in Calicut, B instituted a suit against A in Calcutta for an account and for damages caused As alleged negligence. The suit at Calcutta shall not proceed.

Doctrine of Res-judicata

Section 11 -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.

Essentials

No Court shall try any suit or No Court shall try any issue in which (in present suit) 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 (former court) .

History of Res-judicata

This doctrine is very ancient and well accepted in Hindu Jurists under heading Purvanyaya. Purvanyaya = Former judgement Puryanyaya = Matters Already Decided

This doctrine is accepted by Muslim Jurists

History of Res-judicata

Under Roman Law it was known as exceptio rei judicatae Exceptio rej judicatae = Previous judgement Under English Law It is known as interest reipublicae ut sit finis litium i.e. interest of the state lies in that there should be limitation to law suits.

History of Res-judicata

In the present era the doctrine of resjudicata based on the following maxims:

Nemo debet lis vaxari pro una eteadem None should be vexed twice for the same cause Interest reipublicae ut sit finis litium it is in the interest of state that there should be an end to a litigation
Res-judicata pro veritate occipitur a judicial decision must be accepted as correct.

Illustration :- A filed a suit against for breach of a contract. The suit is dismissed. A subsequently filed another suit against B for damage for breach of contract. Whether subsequent suit is barred ?

Situation I Suit is dismissed for default. Situation II Suit is dismissed on contest. Situation III Suit is proceeded ex-parte and then dismissed.

Matter in Issue

In a suit matter in issue is classified as follows Matters in Issue


Matter Matter Matter Matter

directly in issue substantially in issue collaterally in issue incidentally in issue

Matter directly & substantially in issue


Matter actually in issue Matter constructively in issue

Matter directly & Substantially in issue Exp. III

Illustration 1 :- A files a suit against B for rent dues. The defence taken by B that there is no rent due.

Comment Here in this illustration Matter in issue claim for rent

Illustration 2 :- A files a suit against B for possession of a property on the basis of a sale deed in his favour. B taken the defence that the deed is fictitious. This suit is dismissed and it is held that deed is fictitious. A subsequent suit for some other properties on the basis of the same sale deed has been filed. whether the question of res judicata shall apply if yes they why? Comment :- The matter in issue in the former suit is Entitlement of possession on the basis of genuineness of sale deed. The matter in issue in the subsequent suit relief demanded on the basis of same sale deed which has been declared fictitious. Hence the subsequent suit is barred by res-judicata.

Explanations of Section 11

Explanation I.Definition of FORMER SUITThe expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

A suit filed on 20-01-2007 which is pending for disposal but in case as suit which was filed on 20-01-2008 but disposed of, then the suit which has been filed on 20-01-2008 shall be called as Former suit.

Explanations of Section 11

Explanation II. For the purposes of this section, the competence of a court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Determination of Competence of a Court Provisions as to right of appeal from decision of such court

Explanations of Section 11 Matter


directly & substantially in issue (Exp. III)

Explanation III. The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Matter referred to must be present in the former suit The presence of the said matter be in the form of allegation by one party and Responded by other either in the form of denial, admission (express or implied)

Explanations of Section 11 Matter


constructively in issue (Exp. IV) Constructive res- judicata

Explanation IV. Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Illustration

A filed a suit against B for possession of a property on the basis of ownership. On merit suit is dismissed. A filed subsequent suit and this time claiming the possession on the property on the basis that he is mortgagee. Comment A can not raised this point in the subsequent suit as he ought to take this ground in the previous suit but he failed to take this point in earlier suit so he is barred by law to do so in the subsequent suit.

A filed a suit against B for declaration that he is entitled to certain land as heir of C. The suit dismissed on merit. A then filed another suit claiming the same property on the ground of adverse possession. Comment ?

Explanations of Section 11

Explanation V. Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.

Explanations of Section 11
Representative suits (Exp. VI) Vs PIL

Explanation VI. Where persons litigate bona fide in respect of a public right or of a private right, claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

Explanations of Section 11

[Explanation VII. The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue of former suit shall be construed as references respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.

Explanations of Section 11

Explanation VIII. An issue heard and finally decided by a court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised

Conditions for Res-judicata

1.-The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually (Explanation III) and constructively (Explanation IV) in the former suit. Explanation to be read with this condition. 2.- The former suit must have been a suit between the same parties or between parties under whom they or any of them claim. (Exp. IV is to be read with this condition) 3.- The parties as aforesaid must have litigated under the same title in the former suit. 4.- The court which decided the former suit must have been a court competent to try the subsequent suit or the suit in which such issue is subsequently raised. (Explanation II + VIII)

5.- The matter directly and substantially in issue in the subsequent suit must have heard and finally decided by the court in the first suit

Matter in Issue
Matter in Issue ____________|_____________ | | Matter directly & Matter collaterally Substantially in issue or incidentally in ________|______________ Issue | | Actual in Issue(Ex.III) Constructively in issue (Ex. IV)

Illustration - 1

A sue B for rent. The defence of B is that no rent is due. Here the claim for rent is the matter in respect of which relief claimed. Hence the claim of rent is a matter directly and substantially in issue.

A sues B for two reliefs:- (1) for declaration of title upon a land and (2) for the rent of the said land. B denies As title and contends that no rent is due. Here in the said problem there are two matters which is directly and substantially in issue i.e. (1) Matter of title (2) claim of rent

Illustration - 2

X a Hindu, dies leaving behind a widow. The widow makes a gift to her brother, B of certain property belonging to her husband. After the death of the widow. A Alleging that the he and X were members of a joint family sues B for a declaration that he is entitled to the property by right of survivoreship. The court finds that A and X were separate and As suit is dismissed. Subsequently, A sues B for recovery of the same property, alleging that as the nearest reversionary heir of X, he became entitled to the property on the death of the widow, and that the alienation made by her in favour of B was not binding upon him.
Whether the suit barred by resjudicata ?

Since the matter in issue of the former suit was claim of title on the property gifted by widow to the B

There are four rules on the basis of which concept of constructive res-judicata can be discussed

Constructive res-judicata Explanation - IV

Where right claimed in both the suits is the same, the subsequent suit will be barred by resjudicata, though the right in the subsequent suit is sought to be established by a title different from that in the first suit.
If a matter which forms a ground of attack in the subsequent suit could have been alleged as a ground of defence in the former suit, but was omitted to be so alleged in that suit, it will be deemed to have been directly and substantially in issue in that suit within the meaning of Explanation IV.

Where the right claimed in the subsequent suit is different from that in former suit and it is claimed under a different title, then subsequent suit is not barred by resjudicata
It cannot be said of a relief, which if claimed in the first suit would have made that suit bad for multifariousness, that it ought to have been made a ground of attack in that suit.

Res-judicata Vs Estoppel
Estoppel is the part of Evidence Act and it prevents a person from saying one thing at one time and contradicting it later Where as res-judicata preclude a man from avowing the same thing in successive litigation. Estoppel prohibits the party after the inquiry has already been entered upon, the proving the Under process of development -- Anshuman

Res-judicata Vs Public Interest Litigation

1986 (I) SCC 100 Forward Construction Co. Limited Vs Prabhat Mandal & ors. 1989 (Suppl. I) SCC 504 Rural Litigation and Entitlement Kendra Vs State of U.P. Explanation IV applies to PIL but is applied for PIL Vs PIL and not for Private Litigation Vs PIL.

PLACE OF SUE

Section 15 to Section 25 Court in which the suit be instituted


Lowest grade competent to try(S.15) Where subject matter situated (subject to pecuniary & limitation) i.e. where the property situated

Recovery of immovable property with or without rent or profit Suit for partition, suit for foreclosures, suit for sale Suit for redemption Suit for charge Suit for determination of any right or interest in Immovable Property Suit for compensation for wrong to immovable property Suit for recovery of movable property under attachment

11. For Statement of Objects and Reasons, see Gazette of India, 1907, Pt. V, p. 179 ; and for Report of the Select Committee, see Gazette of India, 1908, Pt. V, p. 35, This Act has been amended in its application to- Assam by Assam Acts 2 of 1941 and 8 of 1953 ; Kerala by Kerala Act 13 of 1957 , Madras by Madras Act 34 of 1950 and Madras A. 0., 1954 , Mysore by Mysore Act 14 of 1955, Panjab by Punjab Act 7 of 1934 ; Rajasthan by Rajasthan Act 19 of 1958 and U.P. Acts 4 of 1925, 35 of 1948 and 24 of 1954. [India] having jurisdiction to grant the relief claimed, or in any court beyond the limits of 11. For Statement of Objects and Reasons, see Gazette of India, 1907, Pt. V, p. 179 ; and for Report of the Select Committee, see Gazette of India, 1908, Pt. V, p. 35, This Act has been amended in its application to- Assam by Assam Acts 2 of 1941 and 8 of 1953 ; Kerala by Kerala Act 13 of 1957 , Madras by Madras Act 34 of 1950 and Madras A. 0., 1954 , Mysore by Mysore Act 14 of 1955, Panjab by Punjab Act 7 of 1934 ; Rajasthan by Rajasthan Act 19 of 1958 and U.P. Acts 4 of 1925, 35 of 1948 and 24 of 1954. [India] established or continued by 22. G.S.R. 15 (E).-In exercise of the powers conferred by sub-section (2) of Sec. 1 of the Code of Civil Procedure (Amendment) Act, 1976 (10 of 1976), the Central Government hereby appoints: (1) The first day of February, 1977 as the date on which the provision of the said Act (except Secs. 12, 13 and 50) shall come into force ; and (2) The first day of May, 1977 as the date on which Secs. 12 and 50 of the said Act shall come into force. Published in the Gazette of India, Extraordinary, Pt. II, Sec. 3 (i), dated 14th January, 1977. [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 11. For Statement of Objects and Reasons, see Gazette of India, 1907, Pt. V, p. 179 ; and for Report of the Select Committee, see Gazette of India, 1908, Pt. V, p. 35, This Act has been amended in its application to- Assam by Assam Acts 2 of 1941 and 8 of 1953 ; Kerala by Kerala Act 13 of 1957 , Madras by Madras Act 34 of 1950 and Madras A. 0., 1954 , Mysore by Mysore Act 14 of 1955, Panjab by Punjab Act 7 of 1934 ; Rajasthan by Rajasthan Act 19 of 1958 and U.P. Acts 4 of 1925, 35 of 1948 and 24 of 1954. [India] from trying a suit founded on the same cause of action.