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Suits barred under Code of Civil Procedure: rule of res sub judice and res judicata

Ubi jus ibi remedium is the fundamental principle of English law which means wherever there is a right, there is a remedy. This principle has been adopted by the Indian legal system also. According to the Code of Civil Procedure, an aggrieved person having a grievance of civil nature can file a suit in a competent civil court. However, few suits are expressly barred under Code of Civil Procedure 1908 which are discussed below.

Suits barred as res sub judice: Section 10

Section 10 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 one 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 constituted by the Central Government and having like jurisdiction, or before the Supreme Court.

Explanation.-
The pendency of a suit in foreign court doesn't preclude the courts in India from trying a suit founded on the same cause of action.[i]

Res sub judice in Latin means under judgment'. Section 10 of the Code of Civil Procedure, 1908 deals with stay of suit. It provides that no court shall proceed with the trial of any suit in which the matter in issue is directly and substantially related to matter in the previously instituted suit between the same parties and the court before which the suit is pending is competent to grant relief.

Scope
The word shall in the provision make it mandatory. This section doesn't apply to the institution of suit. It also doesn't prevent a court from passing interim order such as grant of injunction or stay, appointment of receiver. [ii] It, however, applies to appeals [iii] and revisions. [iv]

Object
The object of this section is to prevent a court of concurrent jurisdiction from adjudicating upon two parallel litigations in respect of the same cause of action, the same subject matter and the same relief and to prevent the multiplicity of proceedings and to avoid conflict of decision. It also protects the litigant from unnecessary harassment.[v]

Essential elements

To attract the provision of section 10, the following conditions must be satisfied:

  1. Two suits- there must be two suits i.e. one previously instituted and one subsequently instituted.
  2. Same matter in issue- the matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit.
  3. Same parties- both the suits must be between the same parties or their representatives.
  4. Same title- parties must be litigating under the same title in both the suits.
  5. The suit must be pending- the previously instituted suit must be pending
    · In the same court or
    · Any other court in India
    · Any other court beyond the limits of India established or continued by the central government.
  6. Competency of the court- the court dealing with the previously instituted suit must be competent to grant the relief claimed in the subsequent suit.
If the abovementioned conditions are fulfilled, the court must stay the suit. The court is empowered to stay the subsequent suit and not the previous one.[vi]

Explanation: suit pending in foreign court

According to the explanation of section 10, the doctrine of res sub judice will not apply if the previously instituted suit is pending in the foreign court. It implies that there is no bar on an Indian court to try a subsequently instituted suit if the previously instituted suit is pending in the foreign court.

Inherent power to stay

Where the provisions of section 10 of the code don't strictly apply, section 151 empowers a civil court to stay a suit to achieve the ends of justice.[vii] Similarly, a court has inherent power to consolidate different suits between the same parties in which the matter in issue is substantially the same.[viii]

Contravention effect of section 10

Any decree passed in contravention of this section doesn't amount to nullity, and therefore it can't be disregarded in execution proceedings. This section bars the trial of the subsequent suit, not the institution.

Exception to section 10: hearing of interlocutory orders
This section doesn't take away the power of the court to pass interlocutory orders. Hence, in a stayed suit, the court may make interim orders, such as attachment before judgment, appointment of receiver, temporary injunction, etc.[ix]

Res Judicata: Section 11

Section 11 of the Code of Civil Procedure 1908 reads 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.

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.
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.
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 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 VII.- 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 proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
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 as 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.[x]

Section 11 embodies the doctrine of res judicata or the rule of conclusiveness of a judgment which means once a suit is decided and the judgment is pronounced by the competent court, the party to the suit has no permission to institute a subsequent suit for the same matter in issue.

Das Gupta, j. explained the doctrine in the case of Satyadhan Ghosal v. Deorjin Debi[xi] in the following words:
the principle of res judicata is based on the need of giving finality to judicial decisions. What is says is that once a res judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation.

When a matter, whether on a question of fact or question of law, has been decided between 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 was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvas the matter again

Scope
The doctrine of res judicata strives to strike a balance between public policy and private interest. It tries to bring natural and fair justice to the parties by barring multiple suits on the same subject matter. This doctrine enables the court to dismiss active suits of the very same nature although is at a different stage.

Res judicata includes two related concepts i.e. claim preclusion and issue preclusion.
Claim preclusion bars a suit from being brought again on the subject that has already been finally decided between the parties.
Issue preclusion bars the re-litigation of issues of fact or law that have already been necessarily determined by the judge as a part of an earlier claim.
Res judicata doesn't bar the appeals. An appeal is the appropriate manner to challenge the judgment rather than starting a new trial. But once the appeal process gets exhausted, res judicata will apply to the decision.

Object

The doctrine is based on the following 3 maxims:

  1. Nemo debet bis vexari pro una et eadem causa (no person should be distressed twice for the same cause);
  2. Interest reipublicae ut sit finis litium (it is in the interest of the state that there should be an end to a litigation); and
  3. Res judicata pro veritate occipitur (a judicial decision must be accepted as correct).

Essential elements

The following conditions are to be satisfied for a matter to constitute as res judicata under code of civil procedure, 1908:

  1. Same matter- the matter directly and substantially in issue in the subsequent suit and the former suit must be the same.
  2. Same parties- parties must be the same in the subsequent suit and the former suit.
  3. Same title- parties must be litigating under the same title under both the suits.
  4. The court that decided the former suit must be competent to try the subsequent suit.
  5. The matter in the subsequent suit must have been heard and finally decided by the court in the former suit.
Section 11 is mandatory. If all the above-mentioned requirements are fulfilled, the doctrine of res judicata will apply. However, section 11 is not exhaustive. Apart from civil suits, the doctrine has been applied since long in various other kinds of proceedings.

Application of res judicata

  1. Public interest litigation

    The doctrine of res judicata may be applied in public interest litigation if the previous litigation was a bona fide public interest litigation in respect of a right which was common. But if the earlier proceeding was not a bona fide litigation, the subsequent proceeding would not be barred.
  2. Res judicata between co-defendants

    In the case of Mahboob Sahib v. Syed Ismail[xii], the court held that adjudication will operate as res judicata between the co-defendants if the following conditions are fulfilled:
    · There must be a conflict of interest between the co-defendants;
    · It must be necessary to decide that conflict to give relief to the plaintiff;
    · The question between the co-defendants must have been finally decided; and
    · Co-defendants were the proper or necessary parties in the previous suit.
  3. Res judicata between co-plaintiffs

    The doctrine can also be applied between co-plaintiffs. If there is a conflict of interest between the plaintiffs and it is necessary to resolve the same by a court to give relief to a defendant, and the matter is decided, it will operate as res judicata between the co-plaintiffs in the subsequent suit.[xiii]
  4. Criminal proceedings

    The doctrine of res judicata should apply even to criminal proceedings.[xiv] Once a person is acquitted or convicted by a competent criminal court, he can't be tried for the same offense again. In the case of Bhagat Ram v. State of Rajasthan,[xv] the Supreme Court held that the principle of res judicata applies to criminal proceedings also.
  5. Execution proceedings

    Explanation VII to section 11 was added by the Amendment Act of 1976 which specifically provides that the provisions of section 11 will directly apply to execution proceedings also. Before the addition of explanation VII to section 11, the provisions didn't directly apply to execution proceedings, but the general principles of res judicata were held to be applicable to execution proceedings.
     
  6. Writ petitions

    Over a long period, it was settled that section 11 of the code doesn't apply to writ petitions filed under Article 32 and 226 of The Constitution of India. But in the case of M.S.M. Sharma v. Dr. Shree Krishna[xvi], for the first time, the Supreme Court held that the general principles of the doctrine apply even to writ petitions filed under Article 32 and 226 of the Constitution of India. Thus, on the dismissal of the petition by the court, the subsequent petition is barred. However, the doctrine doesn't apply to a writ of habeas corpus if fresh, new or additional grounds are available.
     
  7. Industrial adjudications

    The general principles of the doctrine apply even to an industrial adjudication. Thus, an award pronounced by the Industrial Tribunal operates a res judicata in the subsequent proceedings.

Non-application of res judicata

  1. Taxation matters

    The doctrine of res judicata has no application in taxation matters. The liability to pay tax from year to year is a separate, distinct and independent, therefore, the principle of res judicata can't apply.[xvii]
     
  2. Habeas Corpus petitions

    The doctrine doesn't apply to the writ of habeas corpus. Therefore, even after the dismissal of one petition, the second petition filed under fresh new or additional grounds will not be barred[xviii]
     
  3. Dismissal of Writ Petition in limine

    If the writ petition is dismissed in limine and order is pronounced in that behalf and the order is on the merits, such dismissal would be a bar. But if the petition is dismissed in limine without passing a speaking order or recording reasons, it will not operate as res judicata in the subsequent proceedings.[xix]

End-Notes:
  1. Code of Civil Procedure, 1908.
  2. Indian bank v. Maharashtra State Coop. Marketing Federation Ltd., AIR 1998 SC 1952.
  3. Raj Spinning Mills v. A.G. King Ltd., AIR 1954 Punj 113.
  4. Vaithilinga Pandara Sannadhi, Re, AIR 1930 Mad 381.
  5. SPA Annamalay Chetty v. BA Thornlill, AIR 1931 PC 263.
  6. GC Care Centre and Hospital v. O P Care Pvt. Ltd., AIR 2004 SC 2339.
  7. Jado Rai v. Onkar Prasad, AIR 1975, All 413.
  8. P.P. Gupta v. East Asiatic Co., AIR 1960, All184.
  9. Indian bank v. Maharashtra State Coop. Marketing Federation Ltd., AIR 1998 SC 1952.
  10. Code of Civil Procedure, 1908.
  11. AIR 1960 SC 941.
  12. AIR 1995 SC 1205.
  13. Iftikhar Ahmed v. Syed Meharban Ali, AIR 1974 SC 749.
  14. Center of Indian Trade Union v. Union of India, AIR1997 Bom79.
  15. AIR 1972 SC 1502
  16. AIR 1960 SC 1186
  17. Broken Hill Proprietary Co. Ltd. v. Broken Hill Municipal Council, 1926 AC 94
  18. Sunil Dutt v. Union of India, AIR 1982 SC 53
  19. Daryao v. State of UP., AIR 1961 SC 1457

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