Cpc Final Project Nm

CRITICAL ANALYSIS OF DOCTRINE OF RES JUDICATA AND RES SUBJUDICE

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Abstract This research paper explains in detail the meaning of the doctrine of res sub judice and res judicata. Further, it aims to focus on the objectives and functions of each of them. Res sub judice is explained in section 10 of the code of civil procedure. Subjudice in Latin means ‘under judgment’. It denotes that a matter or case is being considered by court or judge. When two or more cases are filed between the same parties on the same subject matter, the competent court has power to stay proceedings. However, the doctrine of res sub judice means stay of suit. The Civil Procedure Code provides rules for the civil court in respect of the doctrine of res sub judice. This rule applies to trial of a suit not the institution thereof. The doctrine of res sub judice aims to prevent courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations with respect to the same cause of action, same subject matter and same relief claimed. The principle of the Res Judicata simply means that if a competent authority has already adjudicated upon an issue, the same parties which were party to the former suit, cannot file another second or third suit, asking the court to adjudicate upon the issue, which is similar to the issue already adjudicated upon in the former suit. The court then disallows the filing of the second matter. This principle facilitates ‘judicial efficiency’, and curbs the filing of ‘frivolous and repetitive suits’, on the same matter. The original maxim was, “Res Judicata pro Veritate Accipitur”, which meant, a thing adjudged must be taken as truth. This full maxim has over the years, shrunk to mere “res judicata”. Further, this research paper also deals with a detailed analysis of the same.

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TABLE OF CONTENTS

1. Introduction 1.1 Research problem

1.2 Existing legal Provision

1.3 Literature review

1.4 Aims and objectives

1.5 Methodology

2. The doctrine of res subjudice

2.1 the legislative intent of drafting the doctrine.

2.2 when a suit is said to be pending.

2.3 Conditions regarding the application of res subjudice.

2.4 Situations in which the provision does not apply.

2.5 Analysis of res subjudice.

2.5.1

object of res subjudice.

2.5.2

Matters in issue

2.5.3

Facilitation of res judicata 3

2.5.4

Subsequent suit is stayed.

2.5.5

Only trial is barred.

2.5.6

Hearing of interlocutory orders.

3. The doctrine of res judicata.

3.1 Conditions for res judicata

3.2 Exceptions to res judicata.

3.3 Constructive res judicata.

3.4 Test for constructive res judicata.

3.5 Exceptions to constructive res judicata.

3.6 Analysis of res judicata.

4. Res judicata v.s estoppel.

5. Conclusion

6. Bibliography.

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1.INTRODUCTION: DOCTRINE OF RES SUBJUDICE. Res sub judice is referred to as the provision as to the stay of suits. Section 10 of the code of civil procedure, 1908, defines the doctrine or res sub judice. The doctrine of res sub judice is otherwise known as the stay of suits. It is defines as follows: 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 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 of 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 course of action1. As we all know, a person is free to file a suit through which he or she is harmed or on behalf of anyone who is harmed. So the major question here is how does the court make sure that the suit is exclusive. If the parties are free to file suits, they might file multiple suits regarding the same matter in the same or different court of the same level. The court needs to make sure that there is no multiplicity of proceedings, and thus there is a need of laws regarding the limitation of filing suits regarding the same matter between the same parties. The concept of res sub judice is a solution to all these problems2. Basically the provisions of res sub Judice are provided under Section 10 of the Code of Civil Procedure, 1908 which provides that a court shall not proceed with the trial of a suit brought before it if the matter in issue is also directly and substantially in issue in a previously instituted

1 2

Section 10 of the Code of civil procedure, 1908. Law Times Journal- Doctrine of Res Subjudice.

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suit between the same parties and that previous suit is pending for adjudication in the same or any other court in India3. DOCTRINE OF RES JUDICATA The doctrine of res judicata, also known as the rule of conclusiveness of a judgement, as to the points decided either of fact, or of law, or of fact and law, in every subsequent suit between the parties, is the crux of the contents of Section 11 of the Code of Civil Procedure (CPC), 1908. It is embodied that once a court of competent jurisdiction reaches a decision with respect to a particular subject matter, no party can be permitted to reopen it in a subsequent litigation. The rationale behind this rule of imposing such a rule is due to the fact that in the absence of the same, there will be no end to litigation and the parties would be put to constant trouble, harassment and expenses.4 This doctrine has been accepted in all civilized legal systems. Dating as far back as the early Roman law, a defendant could successfully contest a suit filed by the plaintiff on a plea of ‘ex captio res judicata’, which meant that one suit and one decision is enough for a single dispute. The doctrine has been described by Spencer Bower as ‘a final judicial decision pronounced by judicial tribunal having competent jurisdiction over the cause or matter in litigation and over the parties thereto’.5 The object of this rule can be explained through the combined effect of three maxims: 

Nemo debet lis vexari pro una et eadem causa- this means that no man shold be vexed twice for the same cause;

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Interest republicae ut sit finis litium- this means that it is in the interest of the state that there should be an end to a litigation; and

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Res judicata pro veritate occipitur- this means that a judicial decision must be accepted as correct.

Thus, the doctrine of res judicata is the combined result of the public policy reflected in the three maxims, and they apply to all judicial proceedings whether civil or criminal. The Supreme Court in Lal Chand v. Radhakrishnan6 expounded the doctrine by stating that the principle is

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Section 10, Code of Civil Procedure, 1908. Satyadhyan Ghoshal v Deorjin Debi AIR 1960 SC 941 5 Takwani (Thakker), C.K. J., Civil Procedure, 5th Edition, 2004 Reprint, p. 53. 6 (1977) 2 SCC 88 4

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founded on justice, equity and good conscience. Once the final judgement has been announced in a lawsuit, the subsequent judges who are confronted with the suit that is identical to or substantially the same as the earlier one, they would apply the res judicata doctrine ‘to preserve the effect of the first judgement’. Therefore, the same case cannot be taken up again either in the same or in the different Court of India. This is just to prevent them from multiplying judgements, so a prevailing plaintiff may not recover damages from the defendant twice for the same injury. In Pukhraj D. Jain v. G. Gopalakrishna7 it has been stated that, if the court is satisfied that subsequent suit can be decided purely on the legal point, it is open to the court to decide such suit. The provisions of Section 11 of the Code of Civil Procedure are not at all exhaustive even though it has very wide and enlarged amplitude. The section “does not affect the jurisdiction of the Court” but “operates as a par to the trial” of the suit or issue, if the matter in the suit was directly and substantially in issue (and finally decided) in the previous suit between the same parties litigating under the same title in a Court, then they are not competent i.e. they become barred to try the subsequent suit in which such issue has been raised. Thus, this doctrine of Res Judicata is a fundamental concept based on public policy and private interest. It is conceived in the larger public interest, which requires that every litigation must come to an end. It therefore, applies to civil suits, execution proceedings, arbitration proceedings, taxation matters, writ petitions, administrative orders, interim orders, criminal proceedings, etc. An ordinary litigation being a party or claiming under a party of a former suit cannot avoid the applicability of section 11 of C.P.C. as it is mandatory except on the ground of fraud or collusion as the case may be. The onus of proof lies on the party relying on the theory of Res Judicata. The provisions of section 11 of C.P.C. are “not directory but mandatory”. The judgment in a former suit can be avoided only by taking recourse to section 44 of the Indian Evidence Act on the ground of fraud or collusion.

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AIR (2004) 7 SCC 251

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1.2 RESEARCH QUESTION An analysis of the doctrine res judicata and doctrine res sub judice with reference to relevant cases in the code of civil procedure. 1.3 EXISTING LEGAL PROVISION The existing legal provisions with regard to the doctrine of res sub judice and the doctrine of res judicata is included in section 10 and section 11 of the code of civil procedure. Section 10 of the code of civil procedure, 1908, defines the doctrine or res sub judice. The doctrine of res sub judice is otherwise known as the stay of suits. It is defines as follows: 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 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 of 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 course of action8. Section 11 defines the doctrine of res judicataNo 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.

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Section 10 of the Code of civil procedure, 1908.

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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.]

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1.4 LITERATURE REVIEW The following juristic writings have been reviewed with regard to the present subject matter: 1. In S.N Singh’s code of civil Procedure, it is mentioned that the stay of suits is mentioned in section 10 and res judicata is mentioned in section 11 of the code. It further explains the scope and object of these provisions with regard to relevant cases which has been discussed in this research paper. This book also explains about the conditions regarding the applicability of both the provisions, namely the doctrine of res sub judice and the doctrine of res judicata. It further explains the situations in which a particular proceeding is not constituted as a suit and also explains the effect of contravention with regard to the doctrine of res sub judice. 2. As for res judicata, the code of civil procedure by Takwani explains the nature of such a doctrine, and the fact that it has been derived from the English law concept of estoppel. It further explains the doctrine of res judicata and the conditions essential for its applicability. It explains about the consolidation of suits and also about how the matter in issue is a relevant Part to apply the doctrine of res judicata.

1.5 AIMS AND OBJECTIVES OF THE RESEARCH PAPER 1. To understand the object and purpose of the doctrine of res sub judice and the doctrine of res judicata. 2. To understand the conditions essential to apply res judicata and res subjudice. 3. To analyse section 10 and 11 of the code of civil procedure. 4. To understand the need of these doctrines. 5. To analyse the effectiveness of these doctrines with regard to relevant case laws. 6. To analyse exceptions regarding the doctrine of res judicata. 7. To analyse the similarities and differences between res judicata and res subjudice. 8. To understand the meaning, conditions and exceptions of constructive res judicata.

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1.6 METHODOLOGY The research paper has relied upon various primary and secondary sources. The research has consulted section 10 and 11 of the code of civil procedure which embodies the doctrine of res judicata and the doctrine of res subjudice. Other sources such as books, articles, and journals account for secondary sources.

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2.THE DOCTRINE OF RES SUB JUDICE: 2.1 THE LEGISLATIVE INTENT OF DRAFTING THE DOCTRINE OF RES SUBJUDICE 1. to avoid two parallel litigations that are similar in respect of cause of action, subject matter and relief in two courts at the same time9, 2. it protects the person from multiplicity of proceedings10. 3. It also prevents the courts of concurrent jurisdiction from simultaneously adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and same relief11. 4. And finally, the conflict of decisions by different courts is also mitigated by virtue of the principle of res sub Judice12. The above mentioned legislative intent can also be termed as the nature and scope of section 10 of the code of civil procedure, 1908. It should be taken into consideration that the courts which are competent to try a case would try such a case and also give a judgement to it. This is the normal procedure followed by courts. But the problem here is that if there is more than one suit pending in the competent courts in India, then each one would give a different judgement and thus this would result in the confusion of the parties to a suit as to whose judgement should they adhere to. The rules laid down in Res Sub judice serves as an effective solution for this as under this, a person is not allowed to institute more than one suit regarding the same subject matter and between the same parties. Also, another fact that has to be kept in mind is that if there is more than one decision passed, then the defendant would only follow the decision which is more in his favour which can be amounted as a form of injustice done towards the person aggrieved. Thus the need for the doctrine of res sub judice is needed more than ever in such situations. The opening words of the section provides that “No court shall proceed with the trial” which makes it apparent that the institution if suit is not barred by this section rather the proceeding, i.e, the trial is barred13. At the same time, it is to be kept in mind that the rule of res Sub Judice however applies to appeals and revisions but it does not preclude a court from passing interim orders such as arrest before judgement, attachment before judgement, stay, etc14. 2.2 WHEN IS A SUIT IS SAID TO BE PENDING: It is important to appreciate that pendency of a previously instituted suit is one of the most essential conditions for application of section 10. The question arises as to when a suit is considered to be pending. As a matter of fact, a suit remains pending so long as decree is drawn

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Code of civil procedure-D.N Mathur Code of civil procedure-D.N Mathur 11 Code of civil procedure-D.N Mathur 12 Code of civil procedure-D.N Mathur 13 Code of civil procedure-D.N Mathur 14 Code of civil procedure-D.N Mathur 10

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up. According to section 2(2) of the code, a decree is drawn up. According to this section, a decree is a formal expression of adjudication by a civil court in a suit that conclusively determines of the rights of the parties with regard to al or any of the matters in controversy in the suit. Therefore, until the rights of the parties to a suit are conclusively determine dby the court by passing a decree, the suit remains pending. 2.3 CONDITIONS REGARDING THE APPLICATION OF DOCTRINE OF RES SUBJUDICE However, for the rules of res subjudice to apply to a suit, the suit must fulfil certain conditions. It is only then than the subsequent suit can be barred proving that it is similar to the previous suit. 1. The first and foremost requirement is that there must be two suits15. 2. One suit should be the one which is previously instituted and other which is subsequently instituted16. 3. the matter in issue in the second suit must be directly and substantially in issue. Matter directly and substantially in issue means that such matter in issue would materially affect the decision of the suit. However, there is no hard and fast rule as to when a matter can be said to be directly in issue and it depends upon the facts and circumstances of each case17. 4. In simple words, for the application of Res Sub Judice, the matter in issue should be identical in both suits18. 5. there must be the pendency of the previously instituted suit19. 6. Such pendency may be therein the court where the subsequent suit is brought or it may be any other court in India. For the application of Res Sub Judice, pendency is the most essential element20. 7. It must also be observed that Section 10 of the Code provides that pendency may also be in any other court beyond the limits of India established or continued by the Central Government or before the Supreme Court21. 8. two suits must be between the same parties. A party is a person whose name appears on the record at the time of the decision. Basically, the persons who have intervened in the suit are known as parties to that suit. Parties may be a plaintiff or a defendant. A party to a suit who is discharged from the suit or who dies pending the suit having his name appeared erroneously on record, or a party whose name has been struck off remains no more a party. The Latin maxim, Res inter alios acta alteri nocere non debet which means that things done between strangers ought not to injure anyone is also in

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Code of civil procedure-D.N Mathur Code of civil procedure-D.N Mathur 17 Code of civil procedure-D.N Mathur 18 Code of civil procedure-D.N Mathur 19 Code of civil procedure-D.N Mathur 20 Code of civil procedure-D.N Mathur 21 Code of civil procedure-D.N Mathur 16

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consonance with the principle of res sub Judice. Therefore, when the parties in the subsequent suit are different from the previous suit, there is no Res Sub Judice. 9. the parties to the suit must be litigating under the same title. Same title means the same capacity. In simple words, title refers to the interest or capacity of a party 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. Thereby, the parties 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. 10. Lastly, for the application of principle of Res Sub Judice, the court trying the previous suit must be competent to grant the relief asked for in the subsequent suit. Therefore the decision of the court of limited jurisdiction ought not to be final and binding on a court of unlimited jurisdiction.The question of competence of the court must be relevant from the date when the subsequent suit would be brought and not when the previous suit was filed. Thus the pendency in the previous suit by the court, not competent to try the subsequent suit, will not operate as Res Sub Judice22. 11. The provisions contained in the Section 10 are exhaustive. Having clear and specific interpretations, the provisions therein shall be considered strictly and mandatorily. The court, henceforth, is bound to stay the proceedings of any proceedings of any suit, having satisfied the conditions laid down under this section. Such proceedings at the risk of repetition must be the one in which the matter in issue is also directly and substantially in issue in a previous suit and between the same parties, having the same title23. In Indian Bank v. Maharashtra State Co-operative Marketing Federation Limited24, the Supreme court held that the object of the prohibition contained in section 10 is to prevent the courts of concurrent jurisdiction from simultaneously trying two parallel suits and also to avoid inconsistent findings on the matters in issue. The provision is in the nature is in the nature of

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Code of civil procedure-D.N Mathur Code of civil procedure-D.N Mathur 24 AIR 1998 SC 1952 23

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rule of procedure and does not affect the jurisdiction of the court to entertain the deal with the later suit nor does it create any substantive right in the matter. In National Institute of Medical Health and Neuro Sciences v. C. Parameshwara25, a pharmacist was removed from service for misappropriation of drugs. The order of removal was set aside by the Labour Court by filing a writ petition. The Employer also filed a ccivil suit for recovery of loss caused to him. Hence, an application was moved to stay the suit. The court observed that the object of section 10 is to prevent the courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. In view of this, the application was held to be not tenable as the subject matter of two proceedings is entirely distinct and different. Further, in this case, the court observed that the fundamental test to attract section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res judicata in subsequent suit. Section 10 applies only in cases where the whole subject matter in both the suits is identical. The key words in section 10 are the matter in issue is directly and substantially in issue in the previously instituted suit. These key words are used in contra distinction of the words incidentally and collaterally in issue. Therefore, section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby that the whole subject matter in both the proceedings is identical. In Sneh lata Mathur v. Brij Raj Bahadur26, the Delhi High Court observed that where controversies in two suits are similar, but not substantially the same, subsequent suit cannot be stayed. It was held, that where earlier suit was for partition, subsequent suit for injunction restraining the defendant from interfering with plaintiffs possession over the property received in partition cannot be stayed. In Aspi jal v. Khushroo Rustom Dadyburjor27, it was held that for section 10 to be attracted it is essential that entire subject matter in controversy must be the same between previous suit

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AIR 2005 SC 242 AIR 2003 Del.259 27 (2013) 4 SCC 333: AIR 2013 SC 1712. 26

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and subsequent suit. Mere Common Grounds in previous suit and subsequent suit would not attract section 10. 2.4 SITUATIONS IN WHICH SECTION 10 OF THE CODE DOES NOT APPLY: The provision (section 10) does not apply in the following circumstances: 1. When the conditions mentioned above are not satisfied. 2. Since, the provision applies only to the suits instituted in a civil court, therefore, it has no application in cases where neither the earlier nor the later proceeding is in a suit. 3. When either previously instituted or the subsequently instituted suit is not tenable. This provision applies only to those suits which are legally maintainable. 4. As for attracting this section, it is necessary that one of the two proceedings must be in a suit, the provision has no application in cases where neither the earlier nor the later proceeding is in a suit28. In Guru Granth saheb sthan, Meerghat, Banaras v. Ved Prakash 29, the Supreme court reiterated that there is no hard and fast rule that simultaneous prosecution of criminal and civil proceedings will embarrass or prejudice the accused or that invariably civil proceedings will embarrass or prejudice the accused or that invariably civil proceedings should be stayed until the disposal of criminal case. Considering the effects of sections 40 to 43 of the Evidence Act, 1872, (regarding the relevancy and binding effect of previous judgement given in a case) it was further held that mere possibility of conflicting decisions in civil and criminal proceedings cannot be a ground to stay civil proceedings as such a possibility is envisaged by law. More so when there is no likelihood of any embarrassment to defendants, as in the present case, as they had already filed written statement in suit and issues were framed. Outcome and/ or findings that might be arrived at by civil court would not prejudice the defence in criminal proceedings

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D.N. Mathur- code of civil procedure. (2013) 7 SCC 622 : AIR 2013 SC 2024

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in the present case. Hence, the judgement of high court staying civil proceedings till decision in criminal case is not justified and set aside. Mathew and Another v. Sony Cyriac and others30: the plaintiff filed a suit for the recovery of the amount due under the cheque which was issued by the defendant and dishonoured on presentment. The plaintiff had earlier initiated proceedings under section 138 of the negotiable instruments act, 1881 on the ground that the defendant has committed offence within the meaning of the act. The defendant entered appearance in the suit and filed application under section 151 of the code of civil procedure praying that the suit be stayed pending the criminal case filed against him. ( it is to be noted that section 10 is applicable only when there are two suits pending in a civil court. By virtue of section 151, which deals with the inherent powers of the civil court, when there are no provisions in the code to deal with a situation the court can adopt a procedure for the ends of justice.) the contention of the defendant was that if he was compelled to disclose their defence in the suit, he will be prejudiced in defending the prosecution against him and consequently the civil court ought to stay the suit. The trial court declined the prayer of the defendant to stay the suit pending the criminal case and dismissed the application filed by the defendant. The defendant filed a revision petition in the High court of Kerala. P.K Balasubramaniam J. held that the civil suit cannot be stayed pending the criminal case filed under section 138 of the negotiable instruments act. In State of Rajasthan v. Kalyan Sundaram Inds.ltd31, the Supreme Court Held that a civil suit can be simultaneously instituted during the pendency of criminal proceedings initiated under section 138 of the negotiable instruments act. 2.5 ANALYSIS OF RES SUB JUDICE: One of the Yardsticks of Assessing the Functioning of the courts is to assess the ‘Judicial Efficiency’. The Judicial Efficiency is not only dependent on the working of the judges and the courts, rather it depends more on the right implementation of the ‘common law rules’ and doctrines, which are there to increase the pace of getting the justice in the court, i.e., increasing

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(1995)(2) KLJ 158 1996 (2)KLT SN 11 P.15

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the judicial Efficiency. Two of Such Doctrines are:- Doctrine of Res Sub judice and Res Judicata32. Subjudice in Latin means ‘under judgment’. It denotes that a matter or case is being considered by court or judge. When two or more cases are filed between the same parties on the same subject matter, the competent court has power to stay proceedings. However, the doctrine of res sub judice means stay of suit. The Civil Procedure Code provides rules for the civil court in respect of the doctrine of res sub judice. This rule applies to trial of a suit not the institution thereof.33 The doctrine of res sub judice aims to prevent courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations with respect to the same cause of action, same subject matter and same relief claimed. it provides that, civil court should not proceed with the trial of any suit in which the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties and the court before which the previously instituted suit is pending is competent to grant the relief sought (Indian Bank v. Maharashtra State Cop. Marketing Federation Ltd., 34 With a large number of pending cases, the Indian judiciary is overburdened and faces a stark lack of resources. In a situation like this, when two suits arising out of the same issues between the same parties are brought before the courts, there is bound to be wastage of resources and frivolous litigation. In order to correct this redundancy, there exists the doctrine of res sub judice which is captured in Section 10 of the Code of Civil Procedure, 1908. In a humble attempt to understand the principle and reasoning behind this doctrine and its application in India, this article analyses some salient features of the rule of res sub judice along with its exceptions35. The first section of the piece defines and explains the doctrine and then the rest of the article is dedicated to examining certain specific aspects of the theory of res sub judice which is divided

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Legal bytes- Doctrine of Res Judicata and Res Sub Judice. Legal bytes- Doctrine of Res Judicata and Res Sub Judice. 34 AIR 1998 SC 1952). 35 Legal bytes- Doctrine of Res Judicata and Res Sub Judice 33

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into five definite components. Finally, we look beyond the doctrine itself in order to clearly understand the extent of its application36. Consider a situation wherein A filed a suit against B claiming title over the ancestral property and delivery of the same. Subsequently, B filed a suit against A to establish his claim over the entire property. Thus the common issue in both these suits is regarding the title over the same property. Since both the suits have similar or related issues, the decision of the first suit should be binding on those issues and it need not be tried again. A second trial on the same issues would entail duplication of work as evidence required to prove those issues in the first suit would be similar to those in the second suit. Thus, it is desirable that such issues be resolved or adjudicated by one court only. It will avoid conflicting decisions or complications arising therefrom37. In order to check this very problem, there exists the concept of res sub judicewhich in Latin means “Under Judgement”. It denotes that a matter is being considered by a court or judge. The concept of res sub judice that where an issue is pending in a Court of law for adjudication between the same parties, any other court is barred from trying that issue so long as the first suit goes on. In such a situation, order is passed by the subsequent court to stay the proceeding and such order can be made at any stage38. In India, this concept is encapsulated in S.10 of Civil Procedure Code. It reads as follows: “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, where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed39” In an attempt to understand res sub judice in India, this article will primarily focus on five of its components as mentioned below:

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Civil Procedure Decoded- Jindal Global Law school- Isha Malik and Rashmita Sunkara Civil Procedure Decoded- Jindal Global Law school- Isha Malik and Rashmita Sunkara 38 Civil Procedure Decoded- Jindal Global Law school- Isha Malik and Rashmita Sunkara 39 Section 10 of the code. 37

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2.5.1 Object of res sub judice Now, consider a situation in which A filed a suit against B, following which B filed a subsequent suit against A on an issue similar to the one in the previous suit. A argued that since a similar suit is pending, the subsequent suit should not be allowed till the disposal. On the other hand, B filed an application arguing that both the suits should be tried together. Each party filed objection to the suit filed by the other. A now contends that S.10 is mandatory and if all the ingredients of the said section are satisfied, the subsequent suit has to be stayed. B contends that even if the ingredients of the doctrine of res sub judice are satisfied, it is still open to the court to consolidate the two suits i.e. combine the suits and all the issues raised in them and hear them together to meet the ends of justice40. Given that the matter in issue is the same in both the cases, the question that arises is that does the rule then also prevent the courts from following any other procedure ( like, hearing the suits together) which would serve the ends of justice. Here, it is fundamental to note that the rule of res sub judice merely lays down a procedure that has to be followed by the court, it is not an inherent legal right of the party i.e. it does not mean that getting the order of staying the suit is an absolute right of the party. The object of the said section is to prevent Courts of concurrent jurisdiction from simultaneously adjudicating upon two parallel litigations in respect of the same issues and the same relief. The policy of the law is to eliminate the possibility of two contradictory verdicts. If consolidation of two suits helps generate the same underlying principle, it would not in any way hinder the policy behind the doctrine of res sub judice. (Guru Prasad v Bijay Kumar 41 Thus, the main objective of res sub judice is to avoid frivolous litigation, wastage of resources and unnecessary delay42. 2.5.2 Matters in Issue In order to understand the applicability of res sub judice, consider a scenario wherein A appointed B as a pharmacist. Later A finds out that B is misappropriating drugs because of which he was removed from service. A also asked B to reimburse him for the losses he occurred

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Civil procedure decoded- Jindal global school of law. AIR 1984 Ori 209 42 Civil Procedure Decoded- Jindal Global Law school- Isha Malik and Rashmita Sunkara 41

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due to B’s illegal actions. On failure to reimburse, A filed a suit for compensation against B. Subsequently, B challenged A’s action of removing him from service in the labour court. In B’s suit, A filed an application invoking the doctrine of res sub judice, with the intention of getting the suit against him stayed. For the doctrine to be applicable the matters in issue should be directly and substantially related to the issues in the previously instituted suit. This means that the issues raised in both the proceedings have to be identical. In the above situation, the issues raised in the two proceedings are entirely different. The first suit instituted by A is on account of the loss suffered due to the shortage of drugs. On the other hand, the subsequent suit is based on employment and consequential reinstatement of B. Hence, the element of res sub judice i.e. having issues that are directly and substantially related is not fulfilled and hence, res sub judice would not apply.(National Institute of M.H & N.S v C. Parameshwara43 Therefore, it follows that for the doctrine of res sub judice to apply, issues of the two suits have to be directly and substantially related to each other. 2.5.3 Facilitation of res judicata The fundamental test for a suit being hit by the rule of res sub judice is whether the decision of the previous suit would act as res judicata. Lets say A, B and C were directors of an entertainment company. They had a deal in which A &B agreed to print the film of D & E give them negative copies of the same in return of a sum Rs. 35 lakh. Later, a dispute arose and the parties did not perform their agreed roles. A,B,C first filed a suit in the Delhi High Court for recovery of Rs. 35 lakh. Consequently D & E filed a suit in the Calcutta High Court claiming a relief of mandatory injunction to release the film negatives and prints. In such a situation, the test to be applied in deciding an application invoking res sub judice is whether the decision in the previous suit (Delhi suit) would operate as res judicata in the subsequent suit (Calcutta suit) if the Delhi suit ends up being decided first. (Prism entertainment pvt ltd. V Prasad productions pvt ltd 44 Since the suit in Delhi was instituted first, and has the same issue as in the subsequent suit raised in Calcutta, the decision of the Delhi suit would operate as res judicata on the Calcutta

43 44

, AIR 2005 SC 242 (244) ) (AIR 2006 Cal 206))

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suit. Therefore, this passes the test for res sub judice and hence, the Calcutta suit is liable to be stayed.45 2.5.4Subsequent suit is stayed Another thing to be noted in res sub judice is that only the subsequent suit is stayed and not the previous one. The case of GC Care Centre & Hospital v. OP Care Pvt. Ltd., (AIR 2004 SC 2339) illustrates this point, wherein, there was a contract between A and B for the sale of a heart-lung machine. Later, a dispute arose between the two parties due to faulty performance of the machine. A first filed a suit against B at court X, demanding recovery of the entire amount paid. Subsequently, B filed a suit against A at court Y demanding Rs.20,000 as outstanding balance. In A’s suit, B took the defence that since both the suits are on similar issues, A’s suit should be stayed. However, court Y held that since A’s suit is the first suit and the subsequent suit had issues similar to the first suit, it is the subsequent suit that is liable to be stayed, and not the previous one. Therefore, applying the rule of res sub judice, it is only the subsequent suit that has to be stayed. (GC Care Centre & Hospital v. OP Care Pvt. Ltd.,46 Accordingly, res sub judice only bars the subsequent suit and not the previous one. 2.5.5 Only trial is barred The rule of res sub judice mandates that till the time the trial of the previous suit is going on, only the trial of the subsequent suit will be stayed and not the suit altogether. To further understand this, consider a situation wherein A tendered an irrevocable Letter of Credit to bank B, to make payments on his behalf to C. Later, A filed a suit against B, demanding that letter of credit be honoured and payment be made to C. Then, B files a summary suitagainst A to recover the same money. In his defence, A argues that the summary suit be stayed on the ground that there is already a suit instituted against B for the same sum47. So the question that now arises is whether a summary suit being the subsequent suit can be barred by res sub judice. Before answering this, another substantial question that arises is what does the rule actually bar? As stated earlier, the doctrine of res sub judice only bars the ‘trial’

45

Civil Procedure Decoded- Jindal Global Law school- Isha Malik and Rashmita Sunkara AIR 2004 SC 2339 47 Civil Procedure Decoded- Jindal Global Law school- Isha Malik and Rashmita Sunkara 46

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of the subsequent suit. In cases where the subsequent suit does not depend on a trial to be decided, such suits are not affected the rule of res sub judice and need not be stayed. Since the summary suit does not require a trial at all, it would not be stayed despite there being a previous suit being instituted on the same issue. The institution of the suit i.e. filing of plaint is not barred, only the trial proceeding is barred under res sub judice. (Indian Bank v. M.S Co-op. Marketing Fedn. Ltd48., Therefore, S.10 only bars the trial of a suit and not the institution of it. 

2.5.6 Hearing of interlocutory orders

In order to answer this, let’s examine a situation wherein A filed a suit against B for dissolution of partnership. Subsequently, B filed a suit against A to recover a sum of money for damages for breach of contract. The issue in both the suits was regarding the same contract. However B’s suit being the subsequent suit, an order of attachment of A’s property was made by the court, and that order was challenged as in violation of the principle of res sub judice49. This can be considered as an exception to the doctrine of res sub judice. Certain orders can be passed without a trial, such as attachment. Hence, such orders are not affected by res sub judice. So, the rule of res sub judice only bars the trial and does not bar the courts from adjudicating upon interlocutory orders such as appointment of receiver, injunction or attachment. (Sennaji Kapuechand v Pannaji Devichand50 As noted above, the subsequent suit stayed under res sub judice is not a dead suit as the court is empowered to adjudicate over interlocutory matters that don’t require trial51. 3. THE DOCTRINE OF RES JUDICATA: The doctrine of res judicata, also known as the rule of conclusiveness of a judgement, as to the points decided either of fact, or of law, or of fact and law, in every subsequent suit between the parties, is the crux of the contents of Section 11 of the Code of Civil Procedure (CPC), 1908. It is embodied that once a court of competent jurisdiction reaches a decision with respect to a particular subject matter, no party can be permitted

48

AIR 1998 SC 1952 (1954)) Civil Procedure Decoded- Jindal Global Law school- Isha Malik and Rashmita Sunkara 50 (AIR 1922 Bom 276 51 Civil Procedure Decoded- Jindal Global Law school- Isha Malik and Rashmita Sunkara 49

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to reopen it in a subsequent litigation. The rationale behind this rule of imposing such a rule is due to the fact that in the absence of the same, there will be no end to litigation and the parties would be put to constant trouble, harassment and expenses.52 This doctrine has been accepted in all civilized legal systems. Dating as far back as the early Roman law, a defendant could successfully contest a suit filed by the plaintiff on a plea of ‘ex captio res judicata’, which meant that one suit and one decision is enough for a single dispute. The doctrine has been described by Spencer Bower as ‘a final judicial decision pronounced by judicial tribunal having competent jurisdiction over the cause or matter in litigation and over the parties thereto’.53 The object of this rule can be explained through the combined effect of three maxims: •

Nemo debet lis vexari pro una et eadem causa- this means that no man shold be

vexed twice for the same cause; •

Interest republicae ut sit finis litium- this means that it is in the interest of the

state that there should be an end to a litigation; and •

Res judicata pro veritate occipitur- this means that a judicial decision must be

accepted as correct. Thus, the doctrine of res judicata is the combined result of the public policy reflected in the three maxims, and they apply to all judicial proceedings whether civil or criminal. The Supreme Court in Lal Chand v. Radhakrishnan54 expounded the doctrine by stating that the principle is founded on justice, equity and good conscience. Once the final judgement has been announced in a lawsuit, the subsequent judges who are confronted with the suit that is identical to or substantially the same as the earlier one, they would apply the res judicata doctrine ‘to preserve the effect of the first judgement’. Therefore, the same case cannot be taken up again either in the same or in the different Court of India. This is just to prevent them from multiplying judgements, so a prevailing plaintiff may not recover damages from the defendant twice for the same injury. In Pukhraj D. Jain v. G. Gopalakrishna55 it has been stated that, if the court is satisfied that subsequent suit can be decided purely on the legal point, it is open to the court to decide such suit. The provisions of Section 11 of the Code of Civil Procedure are not at all exhaustive even though it has very wide and enlarged amplitude.

52

Satyadhyan Ghoshal v Deorjin Debi AIR 1960 SC 941 Takwani (Thakker), C.K. J., Civil Procedure, 5th Edition, 2004 Reprint, p. 53. 54 1977) 2 SCC 88 53

55

AIR (2004) 7 SCC 251

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The section “does not affect the jurisdiction of the Court” but “operates as a par to the trial” of the suit or issue, if the matter in the suit was directly and substantially in issue (and finally decided) in the previous suit between the same parties litigating under the same title in a Court, then they are not competent i.e. they become barred to try the subsequent suit in which such issue has been raised. Thus, this doctrine of Res Judicata is a fundamental concept based on public policy and private interest. It is conceived in the larger public interest, which requires that every litigation must come to an end. It therefore, applies to civil suits, execution proceedings, arbitration proceedings, taxation matters, writ petitions, administrative orders, interim orders, criminal proceedings, etc. An ordinary litigation being a party or claiming under a party of a former suit cannot avoid the applicability of section 11 of C.P.C. as it is mandatory except on the ground of fraud or collusion as the case may be. The onus of proof lies on the party relying on the theory of Res Judicata. The provisions of section 11 of C.P.C. are “not directory but mandatory”. The judgment in a former suit can be avoided only by taking recourse to section 44 of the Indian Evidence Act on the ground of fraud or collusion. 3.1 CONDITIONS FOR RES JUDICATA An analysis of section 11 of the Code shows that there are certain conditions which are to be fulfilled so that the doctrine of res judicata becomes applicable in a case. Firstly, the matter in issue in the subsequent suit must be the same matter which was directly and substantially in issue, either actually or constructively, in the former suit. Second, the matter in issue in the subsequent suit must have been heard and finally decided by the court in the former suit. Third, the court which decided the former suit must be a court which is competent to try the subsequent suit. Fourth, the parties in the subsequent and former suit must be litigating under the same title. Lastly, the former suit and subsequent suit must be between the same parties or between parties under whom they or any of them claim. In the case Satyadhayan v Deorajin Debi 56, the Supreme Court observed that the principle of res judicata is for giving a finality to judicial decisions. What it says is that once a res is judicate, that is, once a matter is decided, it shall not be adjudged again. Primarily, it applies as between past and future litigation. When a matter, whether on a question of fact or question of law, has been decided between two parties

56

AIR 1960 SC 941

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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 canvass the matter again. However, in the case State of Maharashtra v. National Construction Co. 57, it was held that dismissal of a former suit on a technical ground of non-joinder cannot operate as res judicata. The bar applies only if the matter directly and substantially in issue in the former suit has been heard and finally decided by a court that is competent to try such a suit. In the case Susheela v. Kuttikrishnan58 , it was stated by the court that a decree passed on compromise is not a decision by the court and therefore, the compromise decree does not operate as res judicata under section 11 of the Code. 3.2 EXCEPTIONS TO RES JUDICATA Other than appeals, there are a few limited exceptions to res judicata that allow a party to attack the validity of the original judgment. Popularly known as collateral attacks, these exceptions are typically based on procedural or jurisdictional issues, having as their foundational base not the wisdom of the earlier court's decision but its authority or competence to issue it. A collateral attack is more likely to be available in judicial systems with multiple jurisdictions, such as under federal governments, or when a domestic court is asked to enforce or recognize the judgment of a foreign court. Moreover, it may so happen that under certain circumstances, a subsequent court may fail to apply res judicata and render a contradictory verdict on the same claim or issue. In that situation, if a third court is faced with the same case, it is likely to give effect only to the later judgment, even though the result came out differently the second time. This situation is not unheard of, as it is typically the responsibility of the parties to the suit to bring the earlier case to the judge's attention, and the judge must decide how broadly to apply it, or whether to recognize it in the first place. The provisions of section 11 of CPC are not directory but mandatory in nature. The judgment in a former suit can be avoided only by taking recourse to section 44 of the Indian Evidence Act on the ground of fraud or collusion. Nevertheless, in a suit the collusion of only one of the several defendants present is alone not enough to avoid the operation of rule of res judicata. In this context, gross negligence should be

57 58

1996 (1) KLT SN. 16 P. 12 1998 (2) KLT 188

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differentiated from fraud and collusion. It is not for the court to treat negligence or gross negligence as fraud or collusion unless fraud or collusion is the proper inference from facts. Other factors in exception to section 11 being present is that the plaintiff must be litigating bona fide and the fulfillment of this is necessary for the applicability of the section. The above ratio decidendi was laid down in Jallur Venkata Seshayya v. Thadviconda Koteswara Rao and Others59 . This representative suit was brought by some persons on behalf of public interest for declaring certain temples public temples and for setting aside alienation of endowed property by the manager thereof. A similar suit was brought some years ago by two persons and the suit was dismissed on the grounds that the temples were private temples and the property endowed to the temple being private endowment, the alienation thereof were valid. The plaintiffs admitted that they could be deemed to be persons claiming under the plaintiffs in prior suit and the issue in both the suits was same. However, they contended that finding in the prior suit could not be res judicata as against them in as much as there was gross negligence on the part of the plaintiffs in that suit in not producing the documents necessary for the decision of the suit in their favour and in not placing their evidence before the Court. Subsequently Privy Council held that no case of fraud apart from collusion being suggested, the plaintiffs were bound to establish either that the decree in prior suit was obtained by collusion between the parties or that the litigation by the plaintiffs in prior suit was not bona fide. The plaintiffs based their case entirely on inferences to be drawn from alleged gross negligence on the part of the plaintiffs in the prior suit. The finding of gross negligence by the Trial Court was, however, far from a finding of intentional suppression of the documents, something that would have amounted to want of bona fide or collusion on the part of the plaintiffs in prior suit. The suit was subsequently barred on ground of res judicata. In Beliram & Brothers and Others v. Chaudari Mohammed Afzal and Others60 , it was held that where it is established that a minor’s suit was not brought by the guardian of the minor bona fide but was brought in collusion with the defendants and the suit was a fictitious suit, a decree obtained therein is one obtained by fraud and collusion within the meaning of section 44 of the Indian Evidence Act, and does not operate res judicata. The principle of res judicata in section 11 CPC is thus modified by section 44 of the

59 60

AIR 1937 PC 1 AIR 1948 PC 168

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Indian Evidence Act, and the doctrine won’t apply if any of the grounds mentioned in Section 44 exists. 3.3 CONSTRUCTIVE RES JUDICATA The rule of constructive res judicata is engrafted in Explanation IV which states that 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. Here under this, a matter which might and ought to have been made ground of attack is a matter which is constructively in issue. Thus, there is no distinction between the claim that have actually made in the issue and that might and ought to have been made. It is an artificial form of res judicata and 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.61 The very purpose of this doctrine was to subdue cantankerous litigant which could cause harassment and hardship to the opponent by suing him repeatedly with new defences or points.62 In Devilal Modi v STO63 , A challenged the validity of an order of assessment under Article 226. The petition was dismissed on merits. An appeal against that order was also dismissed by SC on merits. A again filed another writ petition in the same HC against the same order of assessment by taking some additional ground. HC dismissed the petition. On appeal, SC barred the petition by the principle of constructive res judicata. In Sivathannu v Kalimmal 64, property being same in both the suits, the High Court held that that where the plaintiff in the earlier suit could not establish their title, they cannot, in the second suit, claim the same property under a different title. He is barred by constructive res judicata. 3.4 TEST FOR CONSTRUCTIVE RES JUDICATA

C.K.Takwani ‘Civil Procedure Code’(Eastern Book Company 6 th ed) p.81 Greenhalgh v Mallard (1947) 2 AII ER 255 at p. 257 63 AIR 1965 SC 1150: (1965) 1 SCR 686 64 (1983) 2 Mad LJ 110 61 62

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As a general rule, if the matter rose as a defence would have defeated, varied, or in any way affected the decree in previous suit, it ought to have been raised 65. Conversely, if the decree in the previous suit is inconsistent with a defence which ought to have been raised, that defence must be deemed to have been raised and finally decided, and is barred by res judicata.66 Following rules can be deducted from the discussion for suits: •

Where the right claimed in both the suits is the same, the subsequent suit will

be barred by res judicata, though the right in the subsequent suit is sought to be established by a title different from that in the first suit.67 In Rukmanand Khaitan v Jawala Dutt Lohia68 , In a suit to recover a loan, the borrower’s prayer for granting benefits under a particular Act was refused. A fresh suit by the borrower under the Act for the same benefits is barred by res judicata. In Dhanniram v Ruttandas 69, A files a suit for declaration that he is entitled to certain lands as heir to X. The suit is dismissed. He cannot, in a later suit, claim title to the properties, by adverse possession. •

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 70. In Union of India v Bilas Singh71, A contract with a firm contained an arbitration clause. The firm made an application for reference to arbitration. The other party did not take the plea that the firm had been re-constituted. The plea could not be taken later. Thus a matter not raised in the principal suit may become res judicata (constructively) in execution. •

Where the right claimed in the subsequent suit is different from that in the

former suit, and it is claimed under a different title, the subsequent suit is not barred by res judicata.72 In Mohomed Ibrahim v Sheik Hamja73 , A, alleging that he mortgaged certain lands to B with possession, sues B for redemption, the suit being brought by

65

Shib Chandra v. Lakhi Priya (1925) 29 CWN 513 Mahim v Anil Bnadhu (1909) CWN 253 67 Mulla, ‘Civil Procedure Code’ (Lexis Nexis Butterworths Wadhwa Nagpur 14th ed) 68 AIR 1985 Cal 715 69 AIR 1961 Punj 563 70 Ibid 71 AIR 1985 Punj 58 72 Supra at 70 73 (1911) ILR 35 Bom 507, 21 IC 387 66

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him as mortgagor. The mortgage is not proved, and the suit is dismissed. A then sues B for possession of the same lands claiming them as absolute owner thereof. 3.5 EXCEPTION TO CONSTRUCTIVE RES JUDICATA: The doctrine of constructive res judicata does not apply to writ proceedings under Article 32 of the constitution. It is only the general principle of res judicata which is applied to writ petitions, but constructive res judicata, which is a special and artificial creation of res judicata, enacted by that section of the Code of Civil Procedure, cannot generally be applied to writ petitions. Therefore, where a question of law was not specifically decided in a writ petition, it cannot operate as constructive res judicata in a subsequent suit on the ground that that point must be deemed to have been raised in the petition and decided against the party who lost in those proceedings.74 Thus this doctrine cannot be applied to whittle down or override the constitutional mandate to the Supreme Court contained in Article 32.75 3.6 ANALYSIS OF RES JUDICATA Res Judicata vis-à-vis Res Sub Judice: The Doctrine of res sub judice, as enumerated in Section. 10 of CPC, deals with the stay of civil suits, providing that 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 and that the court in which the previous suit is pending is competent to grant the relief claimed. The rationale behind both the doctrines of res judicata and res sub judice is essentially similar in nature. The former aims to curtail endless litigations and the convenience caused to the parties thereby, whereas the latter is engaged in an effort to protect a person from multiplicity of proceedings and to avoid a conflict of decisions by confining a plaintiff to one litigation and obviating the possibility of two contradictory verdicts by one and the same court in respect of the same relief. However, there are two main grounds on the basis of which, res judicata and res sub judice can be properly distinguished from each other, viz possibility of two contradictory verdicts by one and the same court in respect of the same relief. However, there are two main grounds on the basis of which, res judicata and res sub judice can be properly distinguished from each other, viz.

74 75

Union of India and Anr v Sharmanand (1972) IILLJ 423 MP Municipal Corp Ahmedabad v Jyotindra 20 Guj LR 90

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(1) The former applies to a matter adjudicated upon (res judicatum), while the latter involves a matter pending trial (sub judice); and (2) The restrictions imposed by the two also differ from each other in that res judicata restricts the trial of a suit or an issue which has been decided in a former suit and res sub judice bars the trial of a suit which is pending decision in a previously instituted suit. 4. Res Judicata vis-à-vis Estoppel: The doctrine of estoppel and res judicata are principles that are often placed on the same plane of generality. Nevertheless, there exist certain fundamental differences between them. Estoppel is actually a part of the law of evidence. Simply speaking, it prevents a person from saying something at one time and the opposite thing at another time. Res judicata, on the other hand, precludes a person from avowing the same thing in successive litigations. No estoppel can be applied to a pure question of law and the very focal point of the operative sphere of the doctrine of res judicata is the transformation of a question of fact into a question of law. The distinguishing features of these two doctrines had best been explained in ‘Sita Ram v Amir Begam76’ , where Mahmud J. proceeded to say, “Perhaps the shortest way to describe the difference between the plea of res judicata and estoppel, is to say that while the former prohibits the court from entering into an enquiry at all as to a matter already adjudicated upon, the latter prohibits a party after the inquiry has already been entered upon, from proving anything which would contradict his own previous declaration or acts to the prejudice of another party who relying upon those declaration or acts to the prejudice of another party has altered his position. In other words, res judicata prohibits an inquiry in limine, whilst an estoppel is only a piece of evidence.”77 As far as the points of similarity between the two are concerned, a popular viewpoint exists comparing the doctrine of res judicata as mentioned in S. 11 of CPC favorably with what is known in English Common Law as estoppel by judgment. It is more a rule of convenience than one of absolute justice, the very existence of which rests upon a foundation of public interest. To serve the same interest, sometimes the rule of res judicata has to be overlooked. However, despite such similarities, there are some essential particulars separating the two principles of estoppel and res judicata, viz.

76 77

(1886) ILR 8 All 324 Ibid; vide p. 332

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(a) Res judicata arises from a judicial decision, whereas estoppel is caused by the act of the parties concerned. (b) Res judicata seeks to prevent multiplicity of suits, where the object of estoppel is to bar multiplicity of representations. (c) Estoppel serves to prevent a party from making certain statements, whereas res judicata precludes an inquiry at the threshold by ousting the court’s jurisdiction to try the case. (d) Finally, while res judicata binds both the parties concerned to a litigation by making a conclusive presumption with regard to truth of the decision in the former suit, estoppel only binds the party who had made the previous statement or committed the previous action.

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5. CONCLUSION Therefore, the primary object of the doctrine of res sub judice is to prevent simultaneous proceedings on litigation of same issues in two courts. The provision applies where the matter in issue arising out of two suits are directly and substantially same. The test for res sub judice as discussed earlier is whether a final decision in the previous suit would operate as res judicata in the subsequent suit. The court is empowered to stay the trial of the subsequent suit. However, if the trial is stayed under the rule of res sub judice, it does not imply that the suit is completely rejected. As noted above the court can still adjudicate upon interlocutory matters. Finally, it is of importance to note that this provision works to avoid conflicting decisions and wastage of resources78. AS Sir Lawrence Jenkings had observed once, the rule of res judicata, while founded on account of precedent, is dictated by a wisdom for all time. Thus res judicata is a fundamental concept based on public policy and private interest. It is conceived in the larger public interest, which requires that every litigation must come to an end. It therefore applies to civil suits, execution proceedings, arbitration proceedings etc. although the doctrine is frequently invoked, it faces many difficulties, either the counsel or the court fails to recognise it.

78

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6. BIBLIOGRAPHY: 

Civil Procedure Decoded- Jindal Global Law school- Isha Malik and Rashmita Sunkara



Sennaji Kapuechand v Pannaji Devichand



Indian Bank v. M.S Co-op. Marketing Fedn. Ltd



GC Care Centre & Hospital v. OP Care Pvt. Ltd



Prism entertainment pvt ltd. V Prasad productions pvt ltd



National Institute of M.H & N.S v C. Parameshwara



Guru Prasad v Bijay Kumar



Legal bytes- Doctrine of Res Judicata and Res Sub Judice



State of Rajasthan v. Kalyan Sundaram Inds.ltd



Mathew and Another v. Sony Cyriac and others



Guru Granth saheb sthan, Meerghat, Banaras v. Ved Prakash



Aspi jal v. Khushroo Rustom Dadyburjor



Sneh lata Mathur v. Brij Raj Bahadur



AK NAIR- the code of civil procedure.



Code of civil Procedure- D.N Mathur.

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