Effective and efficient functioning of courts is very essential for speedy
disposal of cases in the country. The present legal system lays down several
principles to ensure that the rules and doctrines when implemented accordingly
leads to increase in judicial efficiency. The Doctrine of Res Judicata and Res
Sub Judice are two important doctrines that is basically founded on the
principle of justice, equity and good conscience.
In case of Res Judicata, a matter once decided cannot be raised again, either in
the same court or in a different court. This is why it is also called as claim
as it precludes or prohibits any further claims after the final
judgment. It is a common law practice meant to bar re-litigation of cases
between the same parties in the court.
The doctrine of Res Judicata come from the full maxim Res judicata pro
. The concept of Res Judicata evolved from the English
Common Law system, and was 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 (Herein referred to as CPC) which was later as a
whole was adopted by the Indian legal system.
Purpose of Res judicataRes Judicata aims to prevent;
Doctrine of res judicata or rule of conclusive judgement is based on the
following three maxims:
- Injustice to the parties of a case that has been supposedly concluded by
providing closure to a judgment and precluding any further claims
- Unnecessary waste of court resources
- Multiplying of judgments as further claims would lead to several varied judgements on the same matter which will lead to confusion
- Recovery of damages from the defendant twice for the same injury
- Nemo debet lis vexari pro eadem causa no man to be vexed twice for
the same cause.
- Interest republicae ut sit finis litium it is in the interest of the
state that there should be end to litigation.
- Re judicata pro veritate occipitur a judicial decision should be
accepted as correct.
The Supreme Court observed that the first legal maxim takes care of the private
interest and the next two of the larger interest of the society.
Res Judicata under Indian law
Res judicata or the rule of conclusiveness of the judgment has been embodied in
the Indian law under Section 11 of the code of Civil Procedure, 1908. It enacts
that once a matter is finally decided by a competent Court, no party can be
permitted to reopen it in a subsequent litigation. Section 11 states that:
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.Â
Ingredients and essentials of section 11:According to this section, no court shall try any suit or issue in which:
- The matter in issue (directly and substantially) has been directly and
substantially in issue in a former suit.
- Such matter in the former suit had been between the same parties or
between parties claiming under them
- The matter must be litigated under the same title in a court competent
to try such suit or a suit in which the matter has been subsequently raised
and has been heard and finally decided by such court
Further, it must be noted that Section 11 is a mandatory provision and not
directory in nature. The only exception in which a former suit can be avoided on
grounds of fraud or collusion.
The same was discussed in a case where the court held that when it was
established that the guardian of the minor had acted in collusion with the
defendant, it doesn't operate as res judicata and can be set aside by
invoking Section 44 of the Indian Evidence Act,1872. Further, in the case the
court held that, gross negligence in former suit doesn't amount to fraud or
collusion and thus acts as bar to subsequent suit.
The following are also to be taken into account:
- Former suit denotes a suit which has been decided prior to the suit in
question, and not if it was prior to this suit. i.e. The cut-off is date of judgement and not the date of institution of the suit.
- Competency of a court is to be decided, irrespective of the right to
appeal from a former suit.
- The matter referred to in this suit must have been alleged by one party
and either accepted or refused by the other party (expressly/impliedly).
- Any matter which might or ought to have been made ground of attack/defence
in such former suit shall be deemed to have been a matter directly and
substantially in issue in such suit (constructive res judicata).
- If any relief was claimed in plaint and was not granted expressly, it
would be deemed to have been refused in such former suit.
- When persons litigate bonafide in respect of a public/private right
claimed in common for themselves and others, all persons interested for the
purpose of section 11, will be deemed as claiming under persons litigating
Public Interest Litigations:
In case of res judicata, a Public Interest Litigation can be applicable only
when the former suit was bonafide in nature and that it will not act as a shield
in cases where public good is threatened or questioned.
In a case the Supreme Court observed that the writ petition before them was not
an inter-party dispute and the controversy in it was whether mining was to be
allowed or not. Thus, it was a matter that decided the social safety and
providing hazardous free environment. It was further discussed by the court that
this matter was of grave public importance and therefore, res judicata could not
be used as a shield.
The doctrine of res judicata applies to quasi-judicial proceedings before
tribunals also. In case of Sulochana Amma vs Narayanan Nair
, the Court held
that the decree of District Munsif Court though of limited pecuniary
jurisdiction would operate as res-judicata in the subsequent suit between the
same parties. In a suit for an injunction when the title is in issue for the
purpose of granting an injunction, the issue directly and substantially arises
in that suit between the parties.
When the same issue is put in a later suit
based on the title between the same parties or their privies in a subsequent
suit the decree in the injunction suit equally operates as res judicata.
Therefore, even the decree founded on equitable relief in which the issue was
directly and substantially in issue and decided and attained finality would
operate as res judicata in a subsequent suit based on the title where the same
issue directly and substantially arises between the parties.
The doctrine of res judicata applies to the plaintiff as well as the
defendant. The court held in case of Govindaswamy v. Kasturi Ammal
the correctness or otherwise of a judicial decision has no bearing upon whether
or not it operates as res judicata.
The court held in the case of Umayal Achi v MPM Ramanathan Chettiar that the
correctness or otherwise of a judicial decision has no bearing upon whether or
not it operates as res judicata.
Application of res judicata
The doctrine of res judicata can be invoked even in the subsequent stage of the
same proceedings. An order is made in the course of the proceedings, it becomes
final and therefore would be binding upon the parties at any subsequent stages
of the same proceedings.9 This doctrine can also apply against co-defendants.
The court held the following four conditions must be satisfied for the
application of Res judicata:
- there must be a conflict of interest between the defendants concerned
- it must be necessary to decide such conflicts, in order to give relief
to the plaintiff
- the questions between the defendants to be finally decided.
- co-defendants to be necessary and proper parties to the suit.
Further, this doctrine can be applied even between co-plaintiffs.
The court held
that if the following three conditions are satisfied res judicata will be
- there must be a conflict of interest between the co-plaintiffs
- it must be necessary to decide such conflicts, in order to give relief
to the plaintiff
- the questions between the plaintiffs to be finally decided.
Non-application of res judicataHabeas corpus petitions:
Habeas corpus, filed under fresh grounds and changed
circumstances will not be barred by a previous such petition.
Dismissal of writ petition in limine:
Res judicata not applicable when
dismissed in limine or on grounds of laches or availability of alternate
Matter collaterally and incidentally in issue doesn't operate as res judicata.
Res Sub Judice
When two or more cases are filed between the same parties on the same subject
matter, in two or more different Courts, the competent court has power to Stay
ProceedingsÂ of another Court. The doctrine of res sub judice aims to prevent
the courts of concurrent jurisdiction from simultaneously entertaining and
adjudicating upon two parallel litigations with reference to the same cause of
action, same subject matter and same relief claimed.
Application of Res Sub Judice in IndiaSection 10 of CPC defines Stay of suit as follows:
No Court to proceed with trail of any suit in which the matter in issue, is
also directly and substantially in issue. In 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 same or any other
Court, in India, having jurisdiction to grant relief claimed.'
The pendency of a suit in a Foreign Court doesn't preclude the
Courts in India from, trying a suit founded on same cause of action.
Scope, Nature and Objective of section 10
Section 10 deals with the concept of Res Sub Judice.
The principle of res sub-judice prevents the court from proceeding with the
trial of any suit during which the matter in issue is directly or substantially
the same with the previously instituted suit between equivalent parties and the
court where the issue is previously instituted is pending has the power to grant
the relief sought.
This rule is applicable to the trial of the suit and not the institution. It
doesn't restrict the court from passing interim orders like injunction or
stay. However, it applies to revisions and appeals.
The purpose behind this rule is to stop multiplicity of cases in courts. It is
also sought to stop the plaintiff from getting two separate decisions from
different courts in his favor or two contradictory judgements. It also ensures
to guard the litigant from unnecessary harassment. The policy of law is to limit
the plaintiff to at least one legislation, thus obviating the likelihood of two
conflicting verdicts by one and therefore the same court in respect of the same
Meaning of suit - The word suit has not been defined anywhere within the Code,
but it's a proceeding which is commenced by presentation of a plaint. In Hansraj
Gupta and Ors. vs. Official Liquidators of the Dehra Dun-Mussoorie Electric
Tramway Co. Ltd
., the Council has defined the expression suit
Â as a civil
proceeding instituted by presentation of a suit.
In Pandurang Ramchandra vs. Shantibai Ramchandra
, the Supreme Court has stated
suit is to be understood to use on any proceeding in the court of justice by
which a private individual pursues that remedy which the law affords.
The object of Section 10 is to prevent Courts of concurrent jurisdiction from
simultaneously, trying two parallel cases, in respect of same matter in issue.
The two- fold objects are:
Conditions or essentials:
- Avoid wasting Court Resources.
- Avoid Conflicting decisions.
- The matter in issue in both the cases are to be substantially the same
- Previously instituted suit must be pending in the same or any other
court competent to grant:
- Relief claimed in the suit
- Relief claimed in subsequent the suit.
- Suits to the parties are to be the same or between parties under whom
they or any of them claim, litigating under the same title.
- Pendency of suit in Foreign Court doesn't activate Section 10 CPC.
- If suit is pending before a Court and subsequently an application is
filed before a Thasildhar, it doesn't invoke Section 10 as Thasildhar is not a
- For purpose of institution, the date of presentation of plaint and not
the date of admission is considered. The term suit includes appeal.
- Any decree passed in violation of Section 10 is null and void.
When a matter is before a competent Civil Court, the National Commission will
not entertain a petition in respect of identical subject matter under Consumer
The court in this case held that, the object of prohibition in S.10 CPC, is to,
prevent courts of concurrent jurisdiction from simultaneously trying two
parallel cases avoid inconsistent findings on the matter in issue.
With the ever-increasing cases in the courts and the heightened burden on the
courts because of several frivolous and repetitive suits, it is inevitable that
to ensure smooth functioning of the judicial system as well as for providing
justice to needy parties that these two doctrines are rigorously implemented.
These doctrines aren't and must not be used for the aim of avoidance of
justice. Rather, the goal is to make the judiciary more efficient.
The doctrine of Res Sub Judice operates as a stay from the same subject matter
in issue being parallel instituted in two different Courts and the twin
objectives of Section 10 CPC are avoiding conflicting decisions and findings.
Avoiding wastage of Court resources and time. The doctrine of Res Judicata, on
the other hand, aims to ensure that a matter once closed after exhaustion of all
remedies is not re-opened. This is important as if it were not in place, the
cases would go on in perpetuity and there would be no conclusion in any matter.
Award Winning Article Is Written By: Ms.Maryam Basheer -
- Ashok Kumar v National Insurance Company 1998
- Section 44 of the Indian Evidence Act, 1872
- Beli Ram and Brothers v Chaudri Mohammad Afzal (1948) 50 BOMLR 674
- Jallur Venkata Seshayya v. Tahdaviconda Koteswara Rao, 1937
- Rural litigation and Entitlement Kendra v State of Uttar Pradesh, 1985
AIR 652, 1985 SCR (3) 169
- Slochana Amma v. Narayana Nair 1994 AIR 152 SCC (2) 14
- Sulochana Amma vs Narayanan Nair 1994 AIR 152 SCC (2) 14
- Govindaswamy v. Kasturi Ammal 1998 2 MLJ 291
- Umayal Achi And Anr. vs Ramanathan Chettiar (1980) 1 MLJ 24 9 Y.B. Patil v.
Y.L.Patil 1977 AIR 392 SCR (1) 320
- Mahaboob Sahab v Syed Ismail 1995 AIR 120 1995 SCC (3) 693
- Iftikhar Ahmed v. Syed Meharban Ali 1974 AIR 749 SCR (3) 464
- Sunil Dutt v Union of India AIR 1982 SC 53
- Pujari Bai v Madan Gopal 1989 AIR 1764 SCR (3) 383
- Sayed Mohammad v Musa Ummer 1968 (9) Guj.L.R. 1002
- Hansraj Gupta and Ors. vs. Official Liquidators of the Dehra Dun-Mussoorie
Electric Tramway Co. Ltd Privy Council Appeal No. 53 of 1938
- Pandurang Ramchandra vs. Shantibai Ramchandra 1989 AIR 2240 SCR
- Dees Piston Ltd vs. State Bank of India 1991 2 CPR 148
- Indian Bank V Maharashtra State Co-Operative Marketing Federation 1998
REVA University, Bengaluru
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