Res Sub Judice and Res Judicata

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Introduction

One of the Yardsticks of Assessing the Functioning of the courts is to assess the ‘Judicial Efficiency’. The Judicial Efficiency is not only dependent on the working of the judges and the courts, rather it depends more on the right implementation of the ‘common law rules’ and doctrines, which are there to increase the pace of getting the justice in the court, i.e., increasing the judicial Efficiency.

Two of Such Doctrines are:- Doctrine of Res Sub judice and Res Judicata.

Res Sub Judice

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 the power to stay proceedings. However, the doctrine of res sub judice means stay of suit.

The Civil Procedure Code provides rules for the civil court in respect of the doctrine of res sub judice. This rule applies to trial of a suit, not the institution thereof.

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.

Section 10 of the Civil Procedure Code, 1908 embodies the doctrine in these words:-

“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, where such suit is pending in the same or any other Court in India having jurisdiction to grant the 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 the same cause of action.”

Thus it provides that, civil court should not proceed with the trial of any suit in which the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties and the court before which the previously instituted suit is pending is competent to grant the relief sought (Indian Bank v. Maharashtra State Cop. Marketing Federation Ltd., AIR 1998 SC 1952).

The OBJECT of the section is to protect a person from a multiplicity of proceedings and to avoid a conflict of decisions. It also protects the litigant people from unnecessary harassment (SPA Annamalay Chetty v. BA Thornlill, AIR 1931 PC 263).

CONDITIONS to be complied with before the application of the principle:

There must be two suits one previously instituted and the other subsequently instituted.
The matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit.
Both the suits must be between the same parties or their representatives.
The previously instituted suit must be pending in the same court in which the subsequent suit is brought or in any other court in Bangladesh or in any court beyond the limits of Bangladesh established or continued by the Government or before the Supreme Court.
The Court in which the previous suit is instituted must have jurisdiction to grant the relief claimed in the subsequent suit.
Such parties must be litigating under the same title in both the suits.

If these conditions are fulfilled, the subsequent suit must be stayed by the court where it is pending. It must be remembered that the institution of the subsequent suit is not ‘barred’ but its ‘trial’ only. The final decision of the former suit shall operate as res judicata in the subsequent suit.

This Doctrine cannot be applied when the point at issues are distinct and different (Alimallah v. Sheikh, 43 DL RLL 3), or even where there are some issues in common and others are different issues (Abdur v. Asrafun, 37 DLR 271). It is also not applicable between the suits where although the parties are same, the issues are not the same (Manzar v. Rema, 33 DRL 49).

The Effect of the doctrine is that the court may direct to stay the subsequent proceeding. But the Court also can exercise INHERENT POWER TO STAY. It provides that, although the provision of Section 10 is mandatory, this provision has not taken away the court’s inherent power under Section 151 so as to stay the proceedings on the facts and circumstances of a given case to secure the ends of justice where section 10 is not applicable. Therefore, the court may use its inherent power to secure the ends of justice when section 10 is not applicable, even to prevent abuse of process of the court, the court may stay ‘former suit’ too, by applying its inherent power (Ram v. Devidayal, AIR 1954 Bom. 176). There is no bar on the power of an Indian Court to try a subsequently instituted suit if the previously instituted suit is pending in the foreign court (Explanation to s. 10).

When a decree is passed in CONTRAVENTION the decree does not convert into nullity, and therefore, it cannot be disregarded in execution proceedings. The legal value of the decree passed by the court remains intact, even if it is passed in disregard of this principle.

With Respect to Interlocutory/interim orders, these can be considered as an exception to the doctrine of res sub judice. Certain orders can be passed without a trial, such as attachment. Hence, such orders are not affected by res sub judice. So, the rule of res Subjudice only bars the trial and does not bar the courts from adjudicating upon interlocutory orders such as the appointment of receiver, injunction or attachment (Sennaji Kapuechand v. Pannaji Devachand, AIR 1922 Bom 276).

Res Judicata

The principle of the Res Judicata simply means that if a competent authority has already adjudicated upon an issue, the same parties which were party to the former suit, cannot file another second or third suit, asking the court to adjudicate upon the issue, which is similar to the issue already adjudicated upon in the former suit. The court then disallows the filing of the second matter. This principle facilitates ‘judicial efficiency’, and curbs the filing of ‘frivolous and repetitive suits’, on the same matter.

The original maxim was, “Res Judicata pro-Veritate Accipitur”, which meant, a thing adjudged must be taken as truth. This full maxim has over the years, shrunk to mere “res judcicata”.

The source of the Principle can be traced back to two maxims of Roman Jurisprudence. First maxim is, “interest reipublicae ut sit finis litium”, which means, ‘it concerns the State that there be an end to lawsuits’ & Second maxim is, “nemo debet bis vexari pro una et eadem cause”, which means ‘no man should be vexed twice over the same cause’. Though the principle may be traced to an English or Roman Source, it embodies a doctrine which in no way opposes to the spirit of the law as expounded by the Hindu commentators.

Vijnanesvara and Nilakantha include the plea of a former judgment among those allowed by law, each citing for this purpose the text of Katyayana, who describes the plea thus: “If a person though defeated at law, sue again, he should be answered, ‘you were defeated formerly’”. This is called the ‘plea of former judgment’.

The Principle of ‘Res Judicata’ is embodied under s.11 of the Civil Procedure Code, 1908 (Besides this, Section 300 of Code of Criminal Procedure, 1973 and Sections 40-43 of Indian Evidence Act) in Indian Law. The Provision of the Civil Procedure Code, 1908 follows:-

“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 a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III. – The matter 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 the ground of defense or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V. – Any relief claimed in the plaint, which is not expressly granted by the decree, 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 purposes 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 reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, the 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 an as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.”

The principle does not affect the jurisdiction of the court but operates as a bar to the trial of the suit or issue if the matter in the suit was ‘directly’ and ‘substantially’ in issue (and finally decided) in the previous suit between the same parties litigating under the same title in a court, competent to try the subsequent suit in which such issue has been raised.

The OBJECT of the principle rests on public policy as well as private justice. Section 11, CPC aims to prevent a multiplicity of the proceedings and accords finality to an issue, which directly and substantially had arisen in the former suit between the same parties or their privies, decided and became final so that parties are not vexed twice over. The doctrine of res judicata is not merely a matter of procedure but a doctrine evolved by the Courts in the larger public interest. Section 11 merely recognizes the said doctrine which is basically based on public policy (Standard Chartered Bank v. Andhra Bank Financial Services Ltd. & Ors., (2006) 6 SCC 94).

The SCOPE of the principle of res-judicata is defined in the judgment of Satyadhan Ghosal & Ors. V. Smt. Deorajin Debi & Anr., AIR 1960 SC 941. The Supreme Court held that “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 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.

This principle of res judicata is embodied in relation to suits in s. 11 of the Code of the Civil Procedure: but even where s.11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court, as well as any higher court, must in any future litigation proceed on the basis that the previous decision was correct.”

The Doctrine applies to give finality to “lis” (suit) in original or appellate proceedings. The issue once decided should not be allowed to be reopened and re-agitated twice over. The literal meaning of “res” is “everything that may form an object of rights and includes an object, subject-matter or status” and “res judicata” literally means “a matter adjudged a thing judicially acted upon or decided; a thing or matter settled by judgments.” (Escorts Farms Ltd. v. Commissioner, Kumaon Division, Nainital, UP & Ors., (2004) 4 SCC 281).

It also applies to all quasi-judicial proceedings of the tribunals other than the civil courts. (Sulochna Amma v. Narayan Nair, JT 1993 (5) SC 450)

The Applicability of the Principle in ‘Writ Petitions’ is decided by the court in Amalgamated Coalfields Ltd. & Anr. v. Janapada Sabha Chhindwara & Ors., AIR 1964 SC 1013, by holding that, “The general principle of res judicata applies to writ petitions filed under Article 32 and 226. It is necessary to emphasize that the application of the doctrine of res judicata to the petitions filed under Art. 32 does not in any way impair or affect the content of the fundamental rights guaranteed to the citizens of India. It only seeks to regulate the manner in which the said rights could be successfully asserted and vindicated in courts of law.”

This principle is reiterated in the case of Daryao v. State Of UP, AIR 1961 SC 1457, where the Supreme Court has placed the doctrine of res judicata on a higher footing, considering and treating the binding character of the judgments pronounced by competent courts as an essential part of the rule of law.

In State of Karnataka v. All India Manufacturers Organisation & Ors., AIR 2006 SC 1846, the Apex Court held that doctrine also applies in a case of PIL (Public Interest Litigation), provided the earlier case was a genuine and a bona fide litigation as the judgement in the earlier case would be a judgement in rem.

In Mohanlal Goenka v. Benoy Krishna Mukherjee & Ors., AIR 1953 SC 65, the Supreme Court held that even an ‘erroneous decision’ on a question of law attracts the doctrine of res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata.

The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court, having, at an earlier stage, decided a matter in one way, will not allow the parties to re-agitate the matter again at the subsequent stage of the same proceedings.

Section 11 of the Code of Civil Procedure clearly contemplates the existence of two suits and the findings in the first being ‘res judicata’ in the later suit, it is well established that the principle underlying, ‘is equally applicable to the case of decision rendered at successive stages of the same suit or proceeding.’ (Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993). In this judgment, only the supreme court enunciated the principles for application of this doctrine on ‘interlocutory/ interim orders’.

The CONDITIONS to be complied with before the application of the principle are:-

The matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and subsequently in issue, either actually or constructively, in the former suit.
the former suit must have been a suit between the same parties or between parties under whom they or any of them claim. Res judicata not only affects the parties to the suit but his privies, i.e., persons claiming under them.
the parties must have litigated under the same title in the former suit. The expression “same title” means in the same capacity.
the court which decided the former suit must have been a court competent to try the subsequent suit or the suit in which such issue is subsequently raised (This condition is done away by insertion of Explanation VIII in s.11).
The matter should be heard and finally decided. If an opinion is expressed on issues not material to the decision, then res judicata will not apply. (Matter be heard on merits and dismissal on grounds of procedural infirmities will not attract the application of ‘res judicata’).

The TEST to decide whether a matter was directly and substantially in issue in the earlier proceedings is to see if it was necessary for that issue to be decided in order for an adjudication upon the principal issue.

However, every single issue framed is not a matter which is directly and substantially in issue. Thus, it becomes imperative to examine the plaint and the written statement to arrive at a conclusion as to which issues were directly and substantially in issue and which ones were merely incidentally or collaterally in the issue.

Another manner in which such may be tested is by checking if the decision on such an issue would materially affect the decision of the suit. Where there are findings on several issues or where the court rests its decision on more than one point, the findings on all the issues or points will be res judicata. However, no objective test can be laid down to definitively determine which matters are directly and substantially in issue in every case and it depends on the facts and circumstances of each case.

Constructive Res Judicata matter is actually in issue when it is alleged by one – party and denied by the other. It is constructively in issue when the matter might or ought to have been made a ground of attack or defense in the former suit.

Explanation IV to Section 11 says that any matter which might and ought to have been made a ground of defense or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

It may, therefore, happen that a matter though not actually in issue directly and substantially may nevertheless be regarded as having been in issue in a suit when the same might and ought to have been made a ground of attack or defense.

The test is whether the parties had an opportunity of controverting it and if they had, the matter will be treated as actually controverted and decided. When the matter is actually in issue the same is heard and decided, but when it is constructively in issue from its very nature it could not be heard and decided, for this was a matter which might and ought to have been made a ground of attack or defense in the suit. An illustration or two will make the point clear.

An issue which ought to have been raised earlier cannot be raised by the party in a successive round of litigation. In the case of Tata Industries Ltd. v. Grasim Industries Ltd., (2008) 10 SCC 187, the issue before the Supreme Court was that whether the jurisdiction to appoint the arbitrator u/s 11(6) of Arbitration and Conciliation Act, 1996, could be raised before the Supreme Court directly. The Supreme Court rejected the argument by holding that, ‘Question of locus standi not having been raised before the High Court could not survive in Supreme Court.

It amounted to an abandonment of the issue and cannot be raised before the Supreme Court.” The Court applied the Principle of Constructive Res Judicata to question of locus standi, which was directly raised in the Supreme Court and had not been challenged in the High court earlier.

There are certain Exceptions when the principle cannot be applied:-

If the decree has been obtained by practicing misrepresentation or fraud on the court, or where the proceedings had been taken all together under a special statute.
Not every finding in the earlier judgment would operate as a res judicata. Only an issue, which is ‘directly’ and ‘substantially’ decided in the earlier suit, would operate as res judicata.
Where the decision has not been given on merit, it would not operate, in case, the appeal of the judgement and decree of the court below is pending in the appellate court, as then the judgement of the court below cannot be held to be final, and the findings recorded therein would not operate as res judicata.
When the judgment is non-speaking. (Union of India v. Pramod Gupta (Dead) by LRs & Ors., (2005) 12 SCC 1).
Where the matter has not been decided on merit earlier, the doctrine of res judicata is not applicable (State of Uttar Pradesh & Anr. v. Jagdish Sharan Agrawal & Ors., (2009) 1 SCC 689).
It does not apply to criminal cases, where the entire proceedings have been initiated illegally and without jurisdiction. Fatima Bibi Ahmed Patel v. State of Gujarat (2008) 6 SCC 789.
When a matter involves a pure question of law (Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar, (2008) 9 SCC 54).
In cases of Dismissal in limine or dismissal on default, the principle of res judicata does not apply.

**The distinction between “Res Subjudice” and “Res Judicata”**

Res Subjudice is discussed in s.10, CPC; while Res Judicata is discussed in s. 11, CPC.
Res Subjudice applies to the proceedings pending in the court, i.e., matters pending judicial inquiry; while Res Judicata applies to matters already adjudicated upon.
Res Subjudice stays the latter suit instituted in the court which has the same matter directly and substantially in issue in the previous suit; while Res Judicata bars the trial of a suit in which the matter is directly and substantially in issue has already been adjudicated upon in a previous suit.
In the case of Res Subjudice, the previously instituted suit must be pending in the same court in which the subsequent suit was brought or in a different court having jurisdiction to grant the relief claimed; while in Res Judicata, No such requirement is needed.

Conclusion

With the soaring number of filing of frivolous and repetitive suits in the Indian Courts, it has become inevitable to ‘rigorously implement’ these doctrines. But, the rigour of the application of doctrine must not cut the ‘substance’ of justice. The ‘procedure’ of judicial efficiency needs to be given ‘practical recognition’, but while maintaining the balance so that the ‘justice’ does not die.

– Harshdeep Singh Bedi

(NLIU, Bhopal)