TOPIC-2 RES JUDICATA AND RES SUBJUDICE ON PLEADINGS, PLAINTS AND

WRITTEN STATEMENTS

Res judicata and Res Subjudice on pleadings

Res judicata and Res Subjudice are based on equity principles, natural justice and public policy.
Natural justice means ‘justice to be done naturally’ which is adopted naturally by the habits of
every individual.

Res Judicata is mainly aimed to give conclusiveness and finality to the judgment and
put an end for the litigation. In order to bring finality to litigation and prevent a person from
being dragged to court again and again, res judicata is essential in any society.

The doctrine of Res judicata is based on public policy and has universal application, it
was known to ancient Hindu Law as “Purva Nyaya" or “former judgement". Under Roman
Law, it was recognised by the doctrine “previous judgment". Under English law, the principle
is embodied in the maxim interest reipublicae ut sit finis litium, which means the interest of
the State lies in that there should be a limitation to law suits.

India, has adopted the principle of res judicata in S.11 of the Code of Civil Procedure,
1908, based on the three following maxims

1. nemo debet lis vexari pro una et eadem casua meaning that no man should be vexed
twice for the same cause,

2. interest republicae ut sit finis litium or that it is in the interest of the State that there
should be an end to litigation, and

3. res judicata pro veritate occipitur meaning that a judicial decision must be accepted
as correct.

Related concepts UNDER INDIAN LAW similar to res judicata are

1. Article 20(2) of the Constitution of India: Double Jeopardy: - No person shall be prosecuted
or punished for the same offence more than once.

2. Section 26 of the General Clauses Act states that as to offences punishable under two or
more enactments, where an act or omission constitutes an offence under two or more
enactments, then the offender shall be liable to be prosecuted or punished under either or any
of those enactments, but shall not be liable to be punished twice for the same offence.
3. Section 300(1) of Criminal Procedure Code, 1973 provides that “a person who has once been
tried by a court of competent jurisdiction for an offence and convicted or acquitted of offence
shall, while such conviction or acquittal remains in force, not to be liable to be tried again for
the same offence…”.

4. Section 71 of Indian Penal Code provide that, “where anything which is an offence is made
up of parts is itself an offence, the offender shall not be punished of more than one of such his
offences, unless it be so expressly provided”.

RES JUDICATA

a) Purpose
Res judicata is designed to serve in decreasing litigation, protection of the individual
from the harassment of having to litigate the same cause of action or issue against the
same adversary or his privy more than once, and facilitation of reliance on judgments.

b) Essentials
The plea of res judicata can be given effect if four conditions, which are required, are
proved.
(i) litigating parties must be the same;
(ii) the subject matter of the suit also must be identical;
(iii) the matter must be finally decided between the parties;
(iv) the suit must be decided by a court of competent jurisdiction.

(a) Framing of an issue or not framing of a formal issue is immaterial. But, the material
test to be applied is whether the Court considered in the former suit the adjudication of
the issue material and essential for its decision.

(b) Which of the matters are directly in issue and which are collaterally or incidentally
in issue, must be determined on the facts of each case.

(c) Even though an issue is not formally framed, but, it is material and essential in the
earlier proceeding, a finding on that issue would operate as res judicata in the
subsequent proceeding.
When the doctrine of res judicata applies to a second suit involving the same parties
and the same cause of action, the first judgment is conclusive not only on the matters
that were “actually litigated, but on all matters which could have been litigated.

As per sec.11.of C.P.C. Res judicata.- 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 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.

Explanation I: The 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.

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. 4

Explanation Ill: 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.

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.

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.

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.

Explanation Vll: The provisions of this section shall apply to a proceeding for the
execution of a decree and reference in this section to any suit, issue or 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.
Explanation VlIl :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.

Res judicata Bar to further suit whereas res sub judice hinges upon the institution of a
suit.

Applicability of Res judicata

Res judicata is a principle of universal application. Res judicata bars the opening of
final, unappealed judgments on the merits, even where the judgment may have been
wrong or based on a legal principal subsequently overruled.

It applies to

1. civil suits,

2. criminal proceedings, except bail application.

3. writ petitions, except writ of Haebeous corpus (Daryo vs St. U.P)

4. execution suits etc.

5. ex-parte decree and suits dismissed for default if conclusive (B.Pochaiah &
Ors Vs Gatla Akkapalli & Ors AIR 1992 AP 42)

6. Foreign judgments- if conclusive

It does not apply to

1. summary dismissal

2. compromise and consent decrees(estoppel will apply Baldevdas Shivlal vs

Filmisthan distributers India pvt.ltd)

3. When the judgment is non-speaking. (Vide Union of India v. Pramod Gupta

(Dead) by L.Rs. & Ors., (2005) 12 SCC 1).

4. Exceptions to Res Judicata. In Raju Ramsing Vasave v. Mahesh Deorao

Bhivapurkar (2008) 9 SCC 54, the Supreme Court laid down 3 exceptions
to the rule of Res Judicata
 (i) When judgment is passed without jurisdiction
(ii) When matter involves a pure question of law.
(iii) When judgment has been obtained by committing fraud on the
Court.

Some circumstances regarding applicability with precedents

1. In a suit where res judicata was raised as a defence, it is necessary for the Court deciding
the subsequent suit to investigate the facts in order to determine whether the
requirements of Section 11 of the Code have been fulfilled or not. Therefore, the party
who is relying upon the plea of res judicata has to file the copies of the pleadings of the
earlier suit and also the copies of the issues and the judgments in the former suit so that
the Court can see whether the required elements are present on record or not. If plea of
res judicata was not raised as a defence expressly, the decision given in subsequent suit
will prevail.(LIC of India vs Indian auto mobiles).

2. Whether the doctrine is applicable in the proceedings at different stages in the same
Suit?

a) In Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi & Anr., AIR 1960 SC 941,
the Supreme Court considered the applicability of the doctrine in the proceedings
at different stages in the same Suit and held as under: -

“The principle of res judicata is based on the need of giving a finality to judicial
decision. What it says is that once a res is judicata, it shall not be adjudged again.
Primarily, it applies as between past litigation and future litigation....... .. The
principle of res judicata applies also as between two stages in the same litigation to
this extent that a court, whether the trial court or a higher court, having, at an earlier
stage, decided a matter in one way, will not allow the parties to re-agitate the matter
again at the subsequent stage of the same proceedings.”

b) In Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993, the Apex Court observed
as under:-
 “...... though Section 11 of the Code of Civil Procedure clearly contemplates the
existence of two Suits and the findings in the first being res judicata in the later Suit,
it is well established that the principle underlying it is equally applicable to the case
of decision rendered at successive stages of the same Suit or proceeding. But where
the principle of res judicata is involved in the case at the different stages of
proceedings in the same Suit, the nature of the proceedings, the scope of the inquiry
which the adjective law provides for decision being reached as well as the specific
provisions made on matters touching decision are some of the material and relevant
factors to be considered before the principle is held applicable.”

3. Whether res judicata also binds the co-defendants?

a) M/sMakhija Construction & Engg (P) Ltd. v. Indore Development Authority &
Ors., AIR2005 SC 2499).
The principle of Res judicata has been held to bind co-defendants if the relief
given by the earlier decision involved the determination of an issue between co-
defendants.

b) In Munnibibi v. Triloki Nath, AIR 1931 PC 114, three conditions were laid down:
1. There must be a conflict of interest between the defendants concerned.

2. It must be necessary to decide this conflict to give the plaintiff the relief claimed

3. The question between the defendants must be finally decided.

4. Constructive Res Judicata: -

It was also known as deemed or artificial Res Judicata, was explained by the
Hon'ble apex court in AIR 1977 SC 1680, Nawab Hussain vs State of U.P as a warrior
goes to the battle field with all weapones for attack or defence,a party to asuit must take
all pleas in the same suit and he is not allowed to take one after another by instituting
separate suits.
a) Tata Industries Ltd. v. Grasim Industries Ltd. (2008) 10 SCC 187.An issue which
ought to have been raised earlier cannot be raised by the party in successive round
of litigation.
 b) The Hon'ble Apex Court in Ramchandra Dagdu Sonavane (dead) by Lrs. & Ors
v. Vithu Hira Mahar (dead) by Lrs. & Ors., AIR 2010 SC 818; The principle of
res judicata comes into play when by judgment and order a decision of a particular
issue is implicit in it, that is, it must be deemed to have been necessarily decided by
implications even then the principle of res judicata on that issue is directly
applicable. When any matter which might and ought to have been made a ground
of defence or attack in a former proceeding but was not so made, then such a matter
in the eye of the law, to avoid multiplicity of litigation and to bring about finality in
it, is deemed to have been constructively in issue and, therefore, is taken as
decided.(Workmen v. Cochin Port Trust [(1978) 3 SCC 119].

c) Fatima Bibi Ahmed Patel v. State of Gujarat (2008) 6 SCC 789. Supreme Court
held that the principle analogous to Res Judicata or constructive Res judicata does
not apply to criminal cases. Where the entire proceedings have been initiated
illegally and without jurisdiction, in such a case – even the principle of Res judicata
would not apply.

d) In Sunderbai v. Devaji Shankar Deshpande (AIR 1954 SC 82] wherein the

Supreme Court held as follows: where it was held that

“where the right claimed in both suits is the same the subsequent suit would be
barred as res judicata though the right in the subsequent suit is sought to be
established on a ground different from that in the former suit. It would be only
in those cases where the rights claimed in the two suits were different that the
subsequent suit would not be barred as res judicata even though the property
was identical.

5. Directly and substantially in issue: -

In Sajjadanashin Sayed Md.B.E. Edr.(D) by LRs v. Musa Dadabhai

Ummer and others[2000] 3 SCC 350, while dealing with the words directly and
substantially in issue, 'collaterally or incidentally' in issue the Supreme Court had held
as follows:
 “ If the matter was in issue directly and substantially in a prior litigation and
decided against a party then the decision would be res judicata in a subsequent
proceeding. if a matter was only 'collaterally or incidentally' in issue and decided in an
earlier proceeding, the finding therein would not ordinarily be res judicata in a latter
proceeding where the matter is directly and substantially in issue. A collateral or
incidental issue is one that is ancillary to a direct and substantive issue; the former is an
auxiliary issue and the latter the principal issue. Which of the matters are directly in
issue and which collaterally or incidentally, must be determined on the facts of each
case. A material test to be applied is whether the Court considers the adjudication of
the issue material and essential for its decision". if the issue was 'necessary' to be
decided for adjudicating on the principal issue and was decided, it would have to be
treated as 'directly and substantially' in issue and if it is clear that the judgment was in
fact based upon that decision, then it would be res judicata in a latter case.

6. One has to examine the plaint, the written statement, the issues and the judgment to find
out if the matter was directly and substantially in issue (Ishwar Singh Vs. Sarwan
Singh: AIR 1965 SC Mohd.S.Labbai Vs. Mohd. Hanifa: AIR 1965 SC 1569).

7. It is a settled law that in a Suit for injunction when title is in issue, for the purpose of
granting injunction, the issue directly and substantially arises in that suit between the
parties when the same is put in issue in a later suit based on title between the same
parties or their privies in a subsequent suit, the decree in injunction suit equally operates
as a res-judicata.

In Gram Panchayat Vs. Ujagar Singh [AIR 2000 SC 3272]. This Court has stated
that even in an earlier suit for injunction, if there is an incidental finding on title, the
same will not be binding in the later suit or proceedings where title is directly in
question, unless it is established that it was "necessary" in the earlier suit to decide the
question of title for granting or refusing injunction and that the relief for injunction was
found or based on the findings of title. Even the mere framing of an issue may not be
sufficient as pointed out in that case. the plea decided in a suit for injunction touching
the title between the same parties would operate as res judicata.
8. Commissioner of Endowments and others v. Vittal Rao and others .
The ratio in the decision is that failure to frame a formal issue would not
invalidate the findings of the binding judgment between the parties.

9. In Vithal Yeshwant Jathar v. Shikandarkhan Makhtumkhan Sardesai the

Supreme Court observed as follows:

It is well settled that if the final decision in any matter at issue between the parties is
based by a court on its decisions on more than one point each of which by itself would
be sufficient for the ultimate decision the decision on each of these points operates as
res judicata between the parties.

10. Parties must be the same

Once the matter is heard and decided in one suit, the same cannot be agitated
again by the same parties, their legal representatives or successors.

In Sulochana Amma Vs. Narayanan Nair [(1994) 2 SCC 14]. It is observed:

The decision in earlier case on the issue between the same parties or persons under
whom they claim title or litigating under the same title, it operates as a res-judicata. A
plea decided even in a suit for injunction touching title between the same parties, would
operate as res-judicata.

11. WHETHER RESJUDICATA IS A QUESTION OF FACT OR LAW

In Gottumukkala Sundara Narasaraju and 2 others vs Pinnamaraju Venkata
Narasimharaju and 4 others 2016 (2) ALT 497. Wherein our Hon’ble high court
opined that “the law is well settled that when the finding on the issue of res judicata
arrived at by the Courts below is possible and plausible. Res judicata being a question
of fact and law and not a pure question of law, let alone, substantial question of law,
the said question cannot be permitted to be raised in second appeal, more particularly,
when there was no perversity either in the appreciation of facts and the evidence or in
the application of the law to the material facts or the findings recorded by the Courts
below. Is barred by resjudicata.

12. Whether the rejection of the plaint, decree passed thereon is amounting to resjudicata?
 The point is answered by our Hon’ble High Court in Mustigulla @ Namaswamy
Hemanth ... vs M/S. Abhaya Infrastructures ... on 11 August, 2016 reported in 2016(6)
ALT 244 (DB) as the Court did not even examine who were the parties to the previous
litigation, what are the subject matter directly and substantially in issue etc. The
judgment in a suit which is sought to be set aside in the present suit can never operate
as res judicata on the ground of rejection the plaint.

13. Whether the earlier suit decided by limited jurisdiction would operates as res judicata
or not?
a. It was decided by our Lordships in G.Narayan Reddy vs P.Narayana Reddy on
19 February, 2016 reported in 2016(3) ALT 12(AP) as “as per Section 11 of CPC
particularly from Explanation 8 an issue heard and finally decided by a Court even
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.” The earlier eviction suit by Court of limited jurisdiction since
competently decided by going into the title in dismissing the claim for eviction, the
subsequent suit for declaration of title and recovery of possession held operates as
res judicata.

b. 2003 (5) ALT 265 (DB) between B.Narasimha Reddy Vs. Bhaskara Rao Joshi
Wherein our Lordships held that if earlier suit was for injunction and the subsequent
suit was for relief of declaration of title and recovery of possession unless the issue
of lis between the same parties was decided in the earlier suit with finality to bind
them would operates as a resjudicata otherwise would not.

c. The suit for injunction will not operate as res judicata to the subsequent suit for
declaration of title and possession; K.Lakshminarasimha Chary vs.
K.Satyanarayana (2002 (2) ALT 753 (DB)

d. Ramchandra Dagdu Sonavane V. Vithu Hira Mahar AIR 2010 SC 818. Our
Hon’ble Apex Court held that "Where title to property is the basis of the right of
possession, a decision on the question of possession is res judicata on the question
of title to the extent that adjudication of title was essential to the judgment; but
where the question of the right to possession was the only issue actually or
 necessarily involved, the judgment is not conclusive on the question of ownership
or title."

14. Whether earlier suit is filed for eviction and subsequent suit is for question of title would
operates as a resjudicata?

It was decided in Md.Nooman and others Vs., Md.Jabed Alam and others reported
in (2011(1) ALT SC. Wherein our Lordships held that in a suit for eviction even if the
court goes into the question of title and examines the issue in an ancillary manner and
in such cases any observation or finding on the question of title would certainly not be
binding in any subsequent suit on the dispute of title; but there may be exceptions to
the general rule and ultimately held on facts from case on hand. The earlier suit for
injunction since not based on title but for on previous possession, same no way operates
as res judicata to maintain any finding therein in deciding the present suit for the
entitlement by plaintiff to declaration and possession or not, including on the claim of
adverse possession by defendant.

RES SUBJUDICE

The doctrine of res sub judice is based on public policy which aims to confine a plaintiff
to one litigation and to obviate the possibility of two contradictory judgments by one
and the same court in respect of the same relief. First, the doctrine has two objectives,
one is to prevent courts of concurrent jurisdiction from simultaneously trying two
parallel suits between the same parties relating to same matter in issue. Second is to
avoid the conflicting decisions of two competent courts over the same matter and also
to save the time of the court where subsequent suit is instituted in the same matter.

Section 10. Stay of Suit –

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 in 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 cause of action”.

Conditions for bar of a trial of suit

a. There must be two pending suits on same matter,

b. These suits must be between same parties or parties under whom they or any of
them claim to litigate under same title,
c. The matter in issue must be directly and substantially same in both the suits,
d. The suits must be pending before competent Court or Courts,
e. The suit which shall be stayed is the subsequently instituted suit.

But the onus is heavily on the person who pleads that Section 10 Code of Civil
Procedure is attracted and the latter suit is to be stayed. It is not only to be established
that the second suit is for the same relief but also to be confirmed that it is on the same
cause of action.

WHETHER PARTY CAN DICTATE TERMS TO THE COURT?

Mere filing of an application under Section 10 Code of Civil Procedure does not
in any manner put an embargo on the power of the Court to examine the merits of the
matter. 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 other side. [Pukhraj D.Jain Vs., G.Gopalkrishnan AIR
2004 SC 3504].
TRANSFER OF SUIT

Merely because the plea under Section 10 of the Code of Civil Procedure has been
rejected, the Court is not denuded of the exercise of its power to transfer the suit if the
ends of justice call for the exercise of such power. Thus, the scope of the doctrine covers
such cases as the identity and the matter in issue must be substantially the same between
two suits. [Chitivalasa Jute Mills v. Jayee Rewa Cement, AIR 2004 SC 1687].

CONSOLIDATION OF SUITS

The Code of Civil Procedure does not specifically speak of consolidation of suits but
the same can be done under the inherent powers of the Court flowing from Section 151
of the Code of Civil Procedure. Unless specifically prohibited, the Civil Court has
inherent power to make such Orders as may be necessary for the ends of justice or to
prevent abuse of the process of the Court. Consolidation of suits is Ordered for meeting
the ends of justice as it saves the parties from multiplicity of proceedings, delay and
expenses. Complete or even substantial and sufficient similarity of the issues arising
for decision in two suits enables the two suits being consolidated for trial and decision.
The parties are relieved of the need of adducing the same or similar documentary and
oral evidence twice over in the two suits at two different trials. The evidence having
been recorded, common arguments need be addressed followed by one common
Judgment. However, as the suits are two, the Court may, based on the common
Judgment, draw two different decrees or one common decree to be placed on the record
of the two suits. [Chitivalasa Jute Mills v. Jayee Rewa Cement, AIR 2004 SC 1687].

If suit was not stayed then the decision in previous suit would operate res judicata
or not?

As soon as the previously instituted suit is decided, the subsequent suit will practically
stand disposed of as its conclusions would operate as res judicata and therefore, in such
a case only the subsequent suit ought to be stayed under Section 10 of the Code.
 RES JUDICATA V. RES SUB JUDICE

Often people confuse the concepts of res sub judice and res judicata. Res sub judice is
discussed in S. 10 and applies to the date of institution of suit and only stayed the suit
or bar to a trial of a suit. It is matter pending judicial enquiry. S. 11 of the CPC and is a
matter adjudicated upon and applies to the date of adjudication resulting bar of filing
suit.

Conclusion:
With the soaring number of filing of frivolous and repetitive suits in the Indian Courts,
it has become inevitable to ‘rigorously implement’ these doctrines. But, the rigor of
application of doctrine must not cut the ‘substance’ of justice. The ‘procedure’ of
judicial efficiency needs to be given ‘practical recognition’, but while maintaining the
balance so that the ‘justice’ does not die.

“Justice should not only be done but seems to be done, this the basic structure on
which confidence and faith in the institution rests”

[1995 Vol.7 SC 183 of Hon’ble Supreme Court]