deals with the doctrine of res sub-judice and section-11
deals with the doctrine of res:judicata. Section -10 provides the rule with
regard to stay of suits where things are under consideration or pending
adjudication by a court. On the other hand section-11 provides the rule relates
to a matter already adjudicated. It bars the trial of a suit or an issue in
which the matter directly and substantially in issue has been adjudicated upon
in a former suit. Sections 10 and 11 are mandatory.
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
proceeding. However, the doctrine of res-subjudice means stay of suit. This Code
provides rules for the civil court in respect of the doctrine of res
subjudice.This rule applies to trial of a suit not the institution thereof.
Conditions of Res sub-judice
This section can only be applied if the following condition are satisfied. These
- Two suits: Previously Instituted and Subsequently Instituted.
- Matter in issue in subsequent suit: directly and substantially in issue
in previous suit.
- Both suits between same parties or their representatives.
- Previous suit must be pending in same or in any other court.
- The court dealing with previously instituted suit competent to grant
relief claimed in subsequent suit
- Parties litigating under the same titles in both the suit.
Wife A filed a suit for separation of conjugal life and custody of minor child
against husband B. Subsequently husband B claimed custody of minor child by
filling another suit against wife B. The second suit liable to stay under
section 10 of CPC,1908.
When not apply
Court cannot apply this section where point at issues are distinct and
different, or even where there are some issues in common and others are
different issues. This section is also not applicable between the suits where
although the parties are same, but the issues are not the same.
Purposes of Res sub-judice
The section -10 intends to protect a person from multiplicity of proceedings and
to avoid a conflict of decisions. It also protect the litigant people from
unnecessary harassment. It also aims to avert (avoid) inconvenience to the
parties and gives effect to the rule of res judicata.
Purpose in short
- Avoid wasting Court Resources.
- Avoid Conflicting decisions.
- Avoid multiplicity of suit.
What is res-judicata?
Under section 11 of the Code of Civil procedure 1908 , provision has been made
regarding res-judicata. According to this, no court will try any suit or any
issue in the suit in which that issue has been decided between that parties to
the suit or any other parties under them for whose rights the suit has already
been filed in any court of competent jurisdiction, heard and decided by that
court or any point has been raised in the subsequent suit which has already been
heard and decided by any court of competent jurisdiction.
It means that when any suit on certain issues has been heard by the court for
this parties, then the same parties cannot bring the suit on the same points
which have been already heard and decided by the same or any other court prior
to the court.
Thus the doctrine attaches importance to one decision for one case and prohibits
another. (Narayanam Chettiyar Vs Annamlle Chettiyar, A.I.R. 1959, SC 275).
The main objective of this doctrine is to avoid multiplicity of suits. Had thus
doctrine not been there, there would been no end to litigation and no decision
would have been final. One individual could have filed suit on the same point
Broadly, there are three objectives of this doctrine:
- end of litigation;
- security against double suits;
- to give finality to the decision (Gulam Abbas Vs State of Uttar Pradesh, A.I.R. 1981 SC 2198).
In Satya Charan Vs Dev Rajan
(A.I.R. 1962, SC 941) the Supreme Court has decided
that the doctrine of res-judicata is based on the need of giving final shape to
judicial decisions. According to this, any case decided once cannot be reopened
This doctrine can be clarified by an example. A brings a suit against B in the
capacity of owner on the basis of contract which is rejected. Then A again
brings suit against B on the basis of same contract in the capacity of agent.
This was prohibits on the principle of owner on the basis of contract which is
rejected. Then A again brings suit against B on the basis of same contract in
the capacity of agent. This was prohibited on the principle of res-judicata.
The essential elements of Res judicata
There are five elements of res-judicata or we can say that for the applicability
of this doctrine, five conditions are to be fulfilled:
- in the subsequent suit the same issue must be involved directly and
substantially which was involved directly and actually and constructively in
the earlier suit. In other words, for applicability of resjudicata, the issue
involved in the subsequent suit must have been involved actually and
constructively in the earlier suit.
In R.P. Gupta Vs Shri Krishna Poddar (A.I.R. 1965, SC 316), the supreme court
has said that in the subsequent suit the issue involved was not that which was
involved in the earlier suit. Then, there the doctrine of res judicata will not
This can be classified by an example. A brought a suit against B for ousting on
the basis of patta which was decreed. But the decree could not have been
executed in time. Then A brought a suit against B for ousting on the basis of
title. The Supreme Court did not consider it prohibitory on the basis of
res-judicata (Ajit Chopra Vs Sadhu Ram, A.I.R. 2000, SC 212).
In Sardar Bai Vs Mathari Bai (A.I.R. 2005, NOC 251, Madhya Pradesh) is a
quotable case on this point. In this case, there was a issue of completeness of
title due to adverse possession which was involved directly and
substantially……..the parties, in the earlier case. Again, the suit relating to
title was brought. It was considered prohibitory on the basis of doctrine of res
- The second condition of the applicability of the doctrine of res judicata ia
that the same parties must be involved in the later suit which were involved in
the earlier suit or the later suit some of the parties of earlier suits are
involved. If the parties in the later suit are different from those who were
parties in the earlier suit, the doctrine of res judicata will not apply.
Example: A filed a suit against B for rent. B argues that the owner of campus is
not a but C, then A fails to establish his title. Then A files a suit against B
and C for establishing his title. It was not considered as prohibited because
the parties were different in the second suit. (Dwarka Nath Vs Ram Chandra, 29,
- The third condition of the applicability of the doctrine of res judicata is
that the parties have claimed having the same title in the earlier and the later
suit. If in the later suit, in the title changes, the doctrine of res judicata
will not apply.
Example: A brings a suit against B in the capacity of a heir of a Mahant
(deceased) for acquiring the property of a math. The suit is rejected because A
could not prove himself as heir of B. again, A brings a suit against B for
acquiring the property of math in the capacity of the manager of math. It was
not considered as prohibitory by the doctrine of res judicata because the
capacity of A has been different in both the cases.
- The fourth condition of the applicability of the doctrine fo res judicata is
that the court which has decided the earlier case must be competent to decide
the later case also.
Example: A suit wsa filed in the court of munsiff for the vocation of premises
and recovery of rent due. Later on, a second suit was filed in another court for
declaration of title for which the court of munsiff did not have jurisdiction.
It was not considered as prohibitory by the doctrine of res judicata.
- The fifth condition of the applicability of the doctrine of res judicata is
the finality of the decision of the case. If all other conditions are fulfilled,
the doctrine of res judicata will not apply.
In Badami Lal Vs Harsha Vardhan
(A.I.R. 1994, Rajasthan 9), the High Court has
decide that the earlier case must have been decide on the basis of giving the
opportunity of hearing to both the parties, for the applicability of the
doctrine of res judicata. In other words, it can be said that the earlier case
should have been decided on the baiss of merits of the case.
If any case is rejected under order 9 Rule 8 on the basis of error then the
doctrine of res judicata will not apply to that case because it is not disposal
of the case on the basis of its merits (Gujarat Electricity Board, Baroda Vs Saurashta Chemicals, Porbandar
, A.I.R. 2004, Gujarat 83).
In State of Maharashtra Vs M/S National Construction Company
(A.I.R. 1996, Sc
2364), the Supreme Court has decided that the doctrine of res judicata will
apply in a particular case only when;
- the issues in the earlier case were also involved in the later case
actually and substantially;
- such issues have been decide finally;
- such finalization was done by a competent court; and
- the parties have been given the opportunity of hearing before deciding
Thus for applicability of the doctrine of res judicata, all the above conditions
must be fulfilled.
Applicability to Compromise Decree:
The doctrine res judicata does not apply to compromise decree because in such
case there is no adjudication of the rights of parties (Messers AA Associates Vs
Prem Goya, A.I.R. 2002 Delhi 142).
Similarly, in Upaharas Lethasam Vs Asibel Lingdol,
(A.I.R. 1986, Guwahati 55),
the Guwahati High Court has decided that the doctrine of res judicata does not
apply to compromise decree and orders because the compromise is simply an
agreement made between the parties and the court does not make any decision.
Applicability to Arbitration Proceedings:The doctrine of res judicata applies to the decrees based on award provided the
proceedings have been competed by:
- giving the opportunity of hearing to the parties;
- on the basis of merits of the case; and
- the case has been finally decided.
Applicability of Execution Proceedings:According to seventh explanation of section 11of Civil Procedure Code 1908, the
doctrine of res judicata applies to execution proceedings:
In Mohan Goyanka Vs Vinay Kumar Mukharjee
(A.I.R. 1954, SC 65), the same view
expressed by the Supreme court.
Difference between Res- judicata and res-subjudice
- Res subjudice relates to matter pending judicial enquiry or trial sub judice.
Res-judicata relates to a matter already adjudicated or matter in which decision
is already there.
- Res subjudice bars to the trial of a suit. Res-judicata, bars to file a
- Section 10 deals with res-subjudice Section 11 deals with res- judicata