RES SUBJUDICE & RES JUDICATA
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Res-Subjudice: Sn .10 CP.C.
This means a right under judicial consideration'. In order to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in Issue, provisions are made in Sn.10 C.P.C. Such a matter is said to be 'Res Subjudice' if the matter previously instituted is pending in another court of competent jurisdiction. What is barred is the second suit instituted. The second court should not proceed with the trial of the suit if: the object of this rule is to prevent the court of current jurisdiction from simultaneously entering and of adjudication upon two parallel litigation in respect of a same cause of action on the same subject matter and for the same relief
RES –SUBJUDICE OR STAY OF SUIT (SEC 10)
Two object of the rule is to be prevent the court of concurrent jurisdiction from simultaneously entering and adjudicating upon two parallel litigation in respect of the same cause of action on same subject matter and for the same relief. It is a simple word when a suit is pending before a competent court it cannot be sued again in the same or any other Court of the competent jurisdiction
simple word when a suit is pending before the competent court it cannot be used again in the same or any other Court of competent jurisdiction
object : section 10 is to prevent multiplicity of suit .
condition :
two suits
same subject matter
same parties
pending before competent courts
duel competent
The second court should not proceed with the trial of the suit if:
i) The matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties.
ii) The previously instituted suit must be (a) in the same court in which the second, suit is brought or (b) in any other court original or appellate.
iii) The previously instituted case must be pending in any of the courts as above or Supreme Court competent to grant the relief.
E.g.: B residing in Calcutta, has an agent A at Mysore to sell goods. A sues B in Mysore for balance due on account. During the pendency of the suit B institutes a suit against A, in Calcutta. The Calcutta court must not proceed as the matter is re-subjudice in Mysore Court. The suit must be stayed.
Exception: If a suit is pending in a Foreign Court, the suit is not barred in India and hence, a suit may be filed. The provisions in Sn 10 are mandatory. It also applies to proceedings under Art 226 of the Constitution.
Res Judicata: Sn. 11 C.P.C.
The term 'Res' means 'a thing' and 'judicate' means 'already decided'
Res Judicata means 'right decided’. This means 'the matter is adjudicated' and hence, the competent court has already decided the matter. The rule is that the second trial should be barred to prevent multiplicity of proceedings. This rule was laid down in the Duchess of Kingstone's case by Sir William de Gray, Judge. However, several conditions are to be fulfilled to bar the jurisdiction of the second court.res judicata means a thing already decided by the Court of Justice according to Section 11 of the CPC 1908 no court shall try any suit or issue in which the subject matter and the party are the same and had already been tried by the court of competent jurisdiction
The expression res judicata means a thing already decided by a court of justice .
Conditions
i) The matter directly & substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue either directly or constructively in the former suit. Former suit is a suit which has been decided prior to the suit in question.
No court shall try any suit or issue
Subject matter and parties are same
Litigation under the same title
Undrline Principale 3 legal maxim .
1) Nemo debit lis vexari pro qua :- one and the same cause no person should be vexed twice.
2) Interest republica ut sit finis litium :- in the interest of the state there should be an end to litigation .
3) Res judicata pro veritate occipitor :- every judicial decission must be accepted as correct and canclusive truth .
a) A sues B for breach of contract. The suit is dismissed. A subsequently sues B for damages for breach of contract oral the same contract. This-is barred under Re Judicata.
b) A sues B for rent due for the year 1995. The defense is that the rent has been paid and that there are no dues. Hence, the claim for rent is the matter directly and substantially in issue.
ii) The former suit must have been between the same parties or between their representatives.
iii) The parties to the suit must have litigated under the same title in the former suit, same title means the same capacity.
E.g.: A a mahnt of a Hindu mutt, dies. His heir B sues 'S' to recover mutt property from him. The suit is dismissed on the ground that the heir had not taken out succession certificate. But later B is appointed duly as the manager of the mutt. He can sue 'S' and there is no res Judicata.
iv) The court which decided the former suit should have been a court competent to try the subsequent suit. If the first court had exclusive jurisdiction, then that court's jurisdiction will act as res Judicata to bar any subsequent suit. If the first court had concurrent jurisdiction then that court is competent hence res judicata operates. Hence, if the first court had neither exclusive nor concurrent jurisdiction, it has no jurisdiction at all. Hence res judicata will not apply. The suit may be initiated.
v) The matter directly and substantially in issue in the subsequent suit must have been heard And finally decided by the court in the suit.
There must be final decision, the matter is heard and finally
decided in any one of the following ways:
(a) Ex Parte (b) Dismissal (c) Decree (d) Dismissal due to Plaintiff’s failure to produce evidence. Explanation: - Sn 11 has 8 explanations: According to them
i) The matter in the former suit should have been alleged by one party and admitted or denied by the other
ii) Competence of court is decided irrespective of a provision to an appeal in the earlier suit,
iii) "Matter" which might ‘or ought to have been agitated or defended in the earlier suit shall be the matter directly or substantially in issue.
iv) Relief, if not, granted in earlier suit shall be constructed as rejected.
Amendments of C.P.C. 1976.
I.To avoid multiplicity of proceedings it is provided that the District court may try the suit or transfer it to a court with competent jurisdiction if the court finds that the case involves a question which a court of limited jurisdiction would be incompetent to try.
II.Before the new C.P.C. under res judicata the successful party was barred in respect of adverse findings of the court. Now, it is not barred, and he may file an appeal against such adverse findings.
III.The doctrine is now extended to independent proceedings and also to execution proceedings.
Constructive res judicata. section 11 According tothe section 11. constructive res judicata and artificial form of res judicata. res judicata there should be a previous decision and constructive res judicata is applicable without previous decisions. constructive res-judicata section 11 constructive res judicata is an artificial form of the Rise judicata res judicata there should be a previous decision constructive res judicata is applicable without the previous decision the rule of res judicata related to a matter in issue already decided shall not be tried again another court of competent jurisdiction but the rule of constructive res judicata provides that if a party had taken a plea in a proceeding between him and his opponent he should not be permitted to take the same plea against the same party against same subject matter in a subsequent proceeding.
Transfer file a Suit against B to recover money on a pronote be contained that the promissory note was obtained from him by undue influence.objection is overruled that and suit is decreed we cannot challenge the promissory note on the ground of coercion are fraud in subsequent in as much as he ought to have taken that difference in a formal suit the constructive Res- judicata case state of Uttar Pradesh versus Nawab Hussain:-
Explanation :- a matter may be actually or constructively in issue. Matters may be directly in issue. These are clear from the pleadings in the plaint and the written statement. However, there may be matters 'might have been' or 'ought to have been' made by the parties (the plaintiff in his averment or the defendant in his written statement). If the parties have failed in the previous suit to bring out these, then under the rule of res judicata, the matter is deemed to have been in issue directly and substantially, and it is also deemed to have been Heard and decided. The result is that in such cases, the suit is barred under res Judicata.
E.g.: A sues B to recover certain property belonging to the estate of C. The ground was that C & D were brothers; on the death of C, the property came to me survivor D andthat D had adopted 'A'. D, died and the property had come to B. A claimed as adopted son. The suit was dismissed as adoption was not proved. Later A sued B alleging that he was a 'bandhu' of C and hence was entitled. This is barred by constructive res Judicata. B ought to have pleaded that he was a 'bandhu' in the earlier suit. Suit dismissed
Res - Judicate
· It exclude the jurisdiction
· Result from the court decision
· It is based on the public policy
· Avoid multiplicity of suit
· It is bind of the both the parties to a litigation
Estopple
· It is suit the mouth the party
· Result from the Act of the parties
· It is based on the principal of equity
· Avoid multiplicity of representors
· It bind only that party who made the previous statement or should the previous conduct .
Res – subjudice sec 10
· it is related to a matter pending in a court of competent jurisdiction.
Res – judicata sec 11
· it's related to a matter by a already decided Court of competent jurisdiction.
