In the common law, several principles have been laid down which formed the
foundation of the present legal system in India. The purpose of such doctrines
is to assess the Judicial Efficiency and ensure that the productive pace of
getting justice in the court is achieved and maintained. Two of these principles
are discussed in this article, namely, the Doctrine of Res Sub Judice and Res
In Latin, Res Judicata means a matter that has been judged. When a case has
already been decided and the final judgement been given such that the matter is
no longer subject to appeal, the doctrine of res judicata bars or precludes
continued litigation of such matter between the same parties.
On the other hand, Sub Judice means under judgment. It implies that a matter
is being considered by court or judge. In a scenario when two or more cases are
filed between the same parties on the same subject matter, the competent court
has the power to stay proceedings. So, the doctrine of Res Sub Judice means stay
In order to ensure that the courts’ time is effectively used as well as justice
for all is obtained, these doctrines play an important role. They do this by
ensuring that a suit ends after the judgment is passed and that the same suit on
the same subject matter is not filed multiple times. This ensures smooth
functioning of the judiciary.
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
preclusion’ 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 veritate
. 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, which was later as a whole was adopted by the Indian legal
Purpose of Res judicata
Res Judicata aims to prevent:
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
Res judicata includesClaim preclusion:
it focuses on barring a suit from being brought again on a
legal cause of action, that has already been, finally decided between the
bars the re-litigation of factual issues that have already
been necessarily determined by a judge as part of earlier claim.
Though it must be noted that, this doesn't include the process of appeal, as an
appeal is considered the appropriate way to challenge a judgement. Once the
appeal process is exhausted or barred by limitation, the res judicata will apply
to the decision. Therefore, its application is only on the final decision post
Doctrine of res judicata or rule of conclusive judgement is based on the
following three maxims:
Nemo debet lis vexari pro eadem causa
– no man to be vexed twice for the same
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
In the case of Ashok Kumar v National Insurance Company 1998
, 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.
In the case of Satyadhyan Ghosal v. Deorjin Debi
, Hon’ble Justice Das Gupta
explained the doctrine of Res Judicata as;
The principle of res judicata is based on the need of giving a finality to
judicial decisions. What it says is that once a res is judicata, it shall not be
adjudged again. Primarily it applies as between past litigation and future
litigation. 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.
Ingredients and essentials of section 11 CPC
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 is
by taking recourse of Section 44 of the Indian Evidence Act, 1872 on grounds of
fraud or collusion.
The same was discussed in the case of Beli Ram and Brothers v Chaudri Mohammad
, 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.
Further, in the case of Jallur Venkata Seshayya v. Tahdaviconda Koteswara Rao,
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,
it is also to be remembered that, a court of limited jurisdiction where the
former suit was instituted and decided upon, shall operate as res judicata, even
if the court of limited jurisdiction is not competent to try the subsequent
suit. This section 11 applies to execution proceedings also.
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 the case of Rural litigation and Entitlement Kendra v State of Uttar Pradesh,
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.
Further in the case of Ramdas Nayak v Union of India
, court observed that, by
invoking re judicata, it was high time for the court to end repetitive
litigations coming under the grab of public interest litigations.
In Slochana Amma v. Narayana Nair
1994, the court held, the doctrine of res
judicata applies to quasi judicial proceedings before tribunals also.
In the case of Govindaswamy v. Kasturi Ammal
1998, it was held by the court
that, the doctrine of res judicata applies to the plaintiff as well as the
The court held in the case of Umayal Achi v MPM Ramanathan Chettiar
correctness or otherwise of a judicial decision has no bearing upon whether or
not it operates as res judicata.
Applications of res judicata
The doctrine of res judicata can be invoked even in the subsequent stage of the
same proceedings. In the case of Y.B. Patil v. Y.L.Patil, the court held that
once 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
This doctrine can also apply against co-defendants
In the case of Mahaboob
Sahab v Syed Ismail, 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. In the case of
Iftikhar Ahmed v. Syed Meharban Ali, the court held that if the following four
conditions are satisfied res judicata will be applicable:
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
the questions between the plaintiffs to be finally decided.
Non-application of res judicataHabeas corpus petitions:
In the case of Sunil Dutt v Union of India
, it was held
that habeas corpus, filed under fresh grounds and changed circumstances will not
be barred by a previous such petition.
Dismissal of writ petition in limine:
In Pujari Bai v Madan Gopal
, it was held
res judicata not applicable when dismissed in limine ( without speaking orders)
or on grounds of laches or availability of alternate remedies.
Matter collaterally and incidentally in issue doesn’t operate as res judicata as
discussed in the case of Sayed Mohammad v Musa Ummer,
Res judicata not applicable to it proceedings or fixing of fair rent proceedings.
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
Proceedings” of another Court. 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.
Application of Res Sub Judice in India
Section 10 of Civil Procedure Code 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. Explanation: 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 and Objective of section 10 CPC
Scope: Section 10 deals with the concept of Res Sub Judice.
Objective: 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:
Avoid wasting Court Resources.
Avoid Conflicting decisions.
Conditions or essentials
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 Court
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.
Papita, an agent of Babita at Delhi agreed to sell Babita’s goods
in Chennai. Papita, the agent files suit for balance of accounts in Chennai.
Babita sues the agent Papita for accounts and his negligence in Delhi; while
case is pending in Chennai. In this case, Delhi Court is precluded from
conducting trail and Papita can petition Chennai Court to direct stay of
proceedings against Delhi Court.
Escorts Const. Equipments Ltd V Action Const Equipments Ltd 1998Facts:
The defendant had filed for stay of present suit, an application
u/s 10 CPC, on ground that the matter in controversy is pending in Jamshedpur
Court also. This was opposed by plaintiff on ground that, the defendants had
raised issue of jurisdiction of Jamshedpur Court to entertain same suit; and
that application u/s 10 CPC can be filed in the present suit, only if objection
with respect to lack of jurisdiction was withdrawn in Jamshedpur Court.
Court held that the conditions requisite to invoke S.10 CPC
Matter in issue in both the suits to be substantially the same Suit to be
between the same parties or parties litigating under them previously instituted
suit to be in the same Court or a different Court, which has jurisdiction to
grant the relief asked.
There is nothing to the effect that defendant should not question the competency
of previously Court in the previously instituted suit, and there remains the
fact that the plaintiff in their defense against S.10 CPC, had not stated the
Jamshedpur Court is competent. Thus relief was granted to the defendant.
Dees Piston Ltd v/s State Bank of India 1991:
In this case, it was held
that. 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 Protection Act.
Indian Bank v/s Maharashtra State Co-Operative Marketing Federation 1998:
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 are not and must not be used for the purpose of avoidance of
justice. Rather, the purpose 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.
Res Judicata in India
Written By: Sagar Gujjar
- IInd YEAR, L.L.B., (Hons), K.R Mangalam University,