Code of civil procedure 1908 res subjudice and res judicata

It explains concept, definition of res subjudice and res judicata. It also explains essentials and difference between res subjudice and res judicata.

1. Dr. Khakare Vikas
Code of Civil Procedure 1908
Res subjudice
&
Res judicata
Dr. Khakare Vikas
Asso. Prof.
Narayanrao Chavan Law College, Nanded, India

2. Dr. Khakare Vikas
Stay of suit
•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 Court beyond the
limits of India established or continued by the Central Government
and having like jurisdiction, or before the Supreme Court. (sec. 10)

3. Dr. Khakare Vikas
Res subjudice
•Section 10 contains doctrine of res subjudice.
•‘Res’ means a subject matter against which legal proceeding has been
instituted and ‘subjudice’ means a case under trial or under judgment.
•Section states that, the Court shall not proceed with the trial of suit in
which:
•i.The matter in issue in a previously instituted suit between the same
parties;
•ii.Where such suit is pending in the same or any other Court in India.

4. Dr. Khakare Vikas
Object of res subjudice
•To prevent Courts of concurrent jurisdiction for simultaneous
entertaining and adjudicating two parallel litigation for same cause,
same subject matter or for same relief.
•To prevent possibility of two conflicting/contradicting judgments.

5. Dr. Khakare Vikas
Effect of res subjudice
•Section does not prohibit institution of more than one suit but it
simply stays subsequent suit(s) after institution.
•If husband filed a suit for divorce at one place and wife also filed
divorce suit before same or different court, then the subsequently
instituted suit shall be stayed and first suit shall continue.

6. Dr. Khakare Vikas
Conditions for Res-subjudice
1. There must be two suits:
Doctrine of res-subjudice will be applicable for subsequent suit.
Obviously there are two suits and subsequent suit will be stayed.
2. The suits must be between same parties:
Both suits, must be between same parties. Parties may be
actually same or their successor/representative litigating
under the same title.
3. The matter in issue in later suit must be directly and substantially the
same in the previous suit:
Subject matter in both suits must be directly and substantially
same.

7. Dr. Khakare Vikas
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4. Both the suits must be pending in a Court of law:
Both suits i.e. earlier and subsequent suit must be pending in the
Court of law. Both suits may be pending in any Courts in India or
even in the same Court. Court includes Supreme Court or a Court
established outside India, established or continued by Central
Government but does not include a foreign Court.
5. The parties must be litigating under the same title:
In both suits, parties must be litigating under the same title i.e. in
the same capacity.
When these conditions are fulfilled, the Court shall not proceed in the
suit and has to stay the proceeding.

8. Dr. Khakare Vikas
Res judicata
•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. (sec. 11)

9. Dr. Khakare Vikas
Object of res-judicata
i.Give finality to the judgment of the Court,
ii.Protect a person from endless proceedings and
iii.Avoid re-determination of same issues which have already been
adjudicated upon.

10. Dr. Khakare Vikas
Doctrine of res-judicata is
based on the following maxims
i.“Ex captio res judicata”. Meaning: one suit and one decision is
enough for any single dispute;
ii.“Nemo debet bis vexari pro una et endem cuasa”. Meaning: no one
ought to be vexed twice for one and the same cause;
iii.“Interest republicae ut sit finis litum”. Meaning: in the interest of
State there should be an end to litigation;
iv.“Res judicata pro veitee acciptur” . Meaning: a matter already
adjudicated upon must be accepted as truth.

11. Dr. Khakare Vikas
Condition for res-judicata
1. Same parties:
In both suits i.e. the suit which is pending before the Court and
the suit which has been decided (former suit) should be same.
2. Matter in issue:
Subject matter in later suit (which is pending) must be directly
and substantially same in the earlier suit (which was decided).
Subject matter need not to be identical but substantially same.
3. Same title:
The party must be litigating in the subsequent suit must have
litigated under the same title i.e. the same capacity in the earlier
or former suit.

12. Dr. Khakare Vikas
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4. Concurrence of jurisdiction:
The Court who decided the former suit must have been
competent to try the subsequent suit in which the issue has been
subsequently raised.
5. Final decision:
The matter in subsequent suit must have been ‘heard and
decide’ by the former suit. ‘Heard and decided’ means fully
heard and finally decided on merit.

13. Dr. Khakare Vikas
Types of res judicata
•Res judicata as to claim: Res judicata is applicable to entire suit i.e.
applicable to all issues in subsequent suit and thereby the suit is
barred.
•Res judicata as to issue: Res judicata is applicable to some or
particular issue out of many issues in the subsequent suit. Section 11
state that, “No Court shall try any suit or issue”.
•Constructive res judicata: 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.

14. Dr. Khakare Vikas
Difference
Res subjudice Res judicata:
1. Object of Res subjudice is to
prevent two parallel litigations
and avoid conflict of judgments.
2. It is applicable where two suits
are pending in the Court of law for
same matter of controversy.
3. By Res subjudice, trial of
subsequent suit is stayed.
4. Res subjudice is applicable if
both suits involve same matter in
controversy (all issues)
1. Object of Res judicata is to give
finality to decision given by Court.
2. It is applicable where a suit is
pending and matter in controversy
is already decided in a former suit.
3. By Res judicata, trial of
subsequent suit is barred.
4. Res judicata is applicable to suit
(all issues) or to any issue of them.

15. Dr. Khakare Vikas
Thank you.