Res Sub Judice (Stay of Suit) Section-10:
No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed, or in any other Court beyond the
limits of India established or constituted by the Central Government and having like jurisdiction or before he Supreme Court.”
Explanation: The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action.
Object: The object of S.10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The section intends to prevent a person from multiplicity of proceedings and to avoid a conflict of decisions.
Conditions: This section will apply where the following conditions are satisfied:
1) Presence of Two Suits: Where there are two suits, one previously instituted and the other subsequently instituted.
2) 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 between their representatives.
4) Pendency of Suit: The previously instituted suit must be pending:-
a. in the same Court in which the subsequent suit is brought, or
b. in any other Court in India, or
c. in any Court beyond the limits of India established or empowered by the Central Government, or
d. before the Supreme Court.
e. Jurisdiction: The Court in which the previous suit is instituted must have jurisdiction to grant the relief claimed in the subsequent suit.
f. Same Title: Such parties must be litigating under the same title in both the suits.
Provisions are Mandatory: The provisions contained in section-10 are mandatory and no discretion is left with the Court. The order staying proceedings in the subsequent suit can be made at any stage.
A suit pending in a Foreign Court: The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action.23
Inherent power to stay: A civil court has inherent power U/s 151 to stay a suit in the ends of justice or to consolidate different suits between the same parties containing the same matter in issue substantially.
Decree passed in contravention of S.10: It is the trial and not the institution of the subsequent suit which is barred under this section and therefore, a decree passed in contravention of S.10 is not a nullity and the same can be executed.
Consent of parties: The provision of Section10 is a rule of procedure which can be waived by a party and where the parties waive their right and expressly ask the Court to proceed with the subsequent suit, they cannot afterwards challenge the validity of the proceedings.
Res-Judicata
(A case or suit already decided)
(The rule of Conclusiveness of judgment)
Meaning: “Res-judicata” consists of two Latin Words, ‘Res’ means a thing or a matter or a question and ‘Judicata’ means adjudicated, adjudged or decided. Therefore, the expression ‘Res-judicata” means “a thing or matter already adjudged or adjudicated or decided”.
Res-judicata means “a final judicial decision pronounced by a judicial tribunal having competent jurisdiction over the cause or matter in litigation, and over the partiesthereto.
The principal of Res judicata is based on the need of giving finality to judicial decisions. When a matter- whether on a question of fact or a 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 canvass the matter again.
Section 11: “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court.
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 Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such court.
Explanation-III: The mater 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 suit.
Explanation-V: Any relief claimed in the plaint, which is not expressly granted by the degree, shall, for the purposes of this section be deemed to have been refused.
Explanation- VI: Where persons litigate bona fide in respect of a public right or of a private right claimed, in common for themselves and others, all persons interested in such right shall, for the purpose 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 references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree” question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation-VIII: An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit in which such issue has been subsequently raised,”
Object :
The doctrine of Res Judicata is based upon the following four maxims-
a. Nemo debet lis vexari pro una et eadem causa: no man should be vexed twice over for the: same cause;
b. Interest republicae ut sit finisIitium: it is in the interest of the State that there should be an end to a litigation;
c. Res judicata pro veritate occipitur: an judicial decision must be accepted as correct.
d. Res judicata pro veritate habetur: an adjudicated matter shall be deemed correct.
Important Terms: To understand the doctrine of Res-judicata, it is essential to know the meaning of the following terms-
Matters in Issue: The expression ‘matter in issue’ means the right litigated between the parties. The matters in issue may be:
Actually in issue
Matters directly and Constructively in issue Substantially in issue
Matters in issue :
Matters collaterally and incidentally in issue
Directly and substantially in issue: “A matter is ‘directly and substantially in issue’ if it is necessary to decide it in order to adjudicate the principal issue and if the judgment is based upon at decision.”
Directly: A matter cannot be said to be directly in issue if the judgment stands whether the fact exists or does not exist.
Substantially: means essentially, materially or in a substantial manner. A matter can be said to be substantially in issue if it is of importance for the decision of a case.
In order that a matter decided in a former suit may operate as res judicata in a subsequent suit, it must have been directly and subsequently in issue in the former suit.
Illustration: A sues B for rent due. The defence of B is that no rent is due. Here the claim to rent is the matter in respect of which the relief is claimed. The claim of the rent is, therefore a matter, directly and substantially in issue.
Actually in issue: Expl. III
A matter is actually in issue when it is in issue directly and substantially and a competent Court decides it on merit. A matter is actually in issue when it is alleged by one party and denied or admitted by the other. (Expl. III)
Constructively in issue : Expl. IV
A matter can be said be constructively in issue when it “might and ought” to have been made a ground of defence or attack in the former suit. A. matter is constructively in issue when it might and ought to have been made a ground of defence or attack in the former suit. (Expl. IV)
Collaterally or incidentally in issue: “A matter is ‘collaterally or incidentally in issue’ if it is necessary to decide it in order to grant relief to a plaintiff or to a defendant and the decision on such issue either way does not affect the final judgment.
A collateral or incidental issue means an issue which is ancillary to the direct and substantive issue. It refers to a matter in respect of which no relief is claimed and yet it is put in issue to enable the Court to adjudicate upon the matter which is directly and substantially in issue. Decisions on the matters collateral and incidental to the main issues in the case will not operate as res-judicata.
Illustration: A sues B for the rent due: B pleads abatement of the rent on the ground that the actual area of the land is less than that mentioned in the lease deed. The Court, however, finds the area greater than that shown in the lease deed. The finding as to the excess area, being ancillary to the direct and substantial issue, is not res judicata.
It was held in re Gangabai Vs Chhabubai AIR 1982 SC 20 that in order to operate as res judicata the finding must be one disposing of a matter directly and substantially in issue in the former suit and the issue should have been heard and finally decided by the court trying such suit. A matter which is collaterally or incidentally in issue for the purposes of deciding the matter which is directly in issue in the case cannot be made the basis of a plea of res judicata.
The question whether a matter was directly and substantially in issue or merely collaterally or incidentally in issue must be decided on the facts of each case.
In Vithal Yashwant v. Shikandar khan, AIR 1963 SC 385 the Court held that “It is well settled that if the final decision in any matter at issue between the parties is based by a Court on its decision on more than one point – each of which by itself would be sufficient for the ultimate decision- the decision on each of these points operates as res judicata between the parties.”
Illustrations: A sues B (i) – for a declaration of title to certain lands; and (ii) – for the rent of those lands. B denies A’s title to the lands and also contend that no rent is due. In this case, there are two matters in respect of which relief is claimed, viz. (i) – the title to the lands; and (ii) the claim for rent. Both these matters are, therefore, directly and substantially in issue.
Conditions to apply S.11: To constitute a matter as Res judicata U/s 11, the following conditions must be satisfied –
a. Matter in Issue : The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit.
b. Same Parties: The former suit must have been a suit between the same parties or between parties under whom they or any of them claim.
c. Same Title: Such parties must have been litigating under the same title in the former suit.
d. Competent Court: The court which decides of the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequent raised.
e. Final decision of former suit: The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit.
Constructive Res-Judicata
(Prayer for the same relief in the subsequent suit)
The doctrine of constructive Res-judicata is provided in the Explanation IV of section11 which explains that where the parties have had an opportunity of controverting a matter, that should be taken to be the same
thing as if the matter has been actually controverted and decided. The object of Expl. IV is to compel the plaintiff or the defendant to take all the grounds of attack or defence which were open to him.
The rule of Constructive res judicata 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. That clearly is opposed to consideration of Public Policy. Besides, if such a course is allowed to be adopted, the doctrine of finality of judgments pronounced by Courts would also be materially affected.
In Forward Construction Co. Vs. Prabhat Mandai AIR 1986 S.C., the Court observed that “an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence.”
The principle underlying Expl. IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it can not be said to have beer actually heard and decided. It could only be deemed to have been heard and decided.
In Workmen, C.P. Trust Vs Board of Trustees AIR 1978 S.C. 1283, the Supreme Court held that “The principle of res judicata also comes into play when by the judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implication; then also the principle of res judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided”.
lIIustrations27
1. A files a suit against B for declaration that he is entitled to certain lands as heir of C. The suit is dismissed. The subsequent suit, claiming the same property on the ground of adverse possession, is barred by constructive res judicata.
2. A files a suit against B to recover money on a pro-note. B contends that the promissory note was obtained from him by undue influence. The objection is overruled and suit is decreed. B cannot challenge the promissory note on the ground of coercion or fraud on subsequent suit, in as much as he ought to have taken that defence in the former suit.
3. As a mortgagor A sues B for redemption of certain property alleging that he has mortgaged it with possession to B. The mortgage is not proved and the suit is dismissed. A files another suit against B for possession of the same property claiming to be the owner thereof. The suit is not barred.
4. A sues B for a declaration that he is entitled to certain property as an heir of X. The suit is dismissed. A files another suit for injunctions on the ground that he had become an owner of the property by adverse possession. This ground was available to him even at the time of previous suit but was not taken at that time. The subsequent suit is barred.
Section 11 is not exhaustive
It has been held in Lal Chand Vs Radha Kishan A IRs. 1977 S C 789 by Chandrachud, J. that –
Section 11 is not exhaustive and the principle which motivates that section can be extended to cases which do not fall strictly within the letter of Law. The principle of res judicata is convinced in the larger public interest, which requires that all litigation must, sooner than later, come to an end.
Waiver of Plea of res-judicata: The plea of res judicata is not one, which affects the jurisdiction of the Court. The doctrine of res judicata belongs to the domain of procedure and the party may waive the plea of res judicata. Similarly, the Court may decline to go into the question of res judicata on the ground that it has not been properly raised in the proceedings or issues.
Res-judicata between co-defendants: A matter may operate as res-judicata between co- defendants and co-plaintiffs if the following conditions are satisfied:
a. There must be conflict of interest between the co-defendants.
b. It must be necessary to decide that conflict in order to give relief to the plaintiff.
c. The question between the co- defendants must have been finally decided; and
d. The co- defendants were necessary or proper parties in the former suit.
Illustration: A sues B, C and D and in order to decide the claim of A, the Court has to interpret a will. The decision regarding the construction of the will on rival claims of the defendants will operate as res-judicata in any subsequent suit by any of the defendants against the rest.
Law Notes 