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Res-Subjudice & Res Judicata

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:

  1. The matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties.
  2. 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.
  3. 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.

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.


  1. 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.
  2. A sues B for breach of contract. The suit is dismissed. A subsequently sues B for damages for breach of contract or the same contract. This-is barred under Re Judicata.
  3. 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.
  4. The former suit must have been between the same parties or between their representatives.
  5. The parties to the suit must have litigated under the same title in the former suit,; same title means the same capacity.
    Eg.: 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.
  6. 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.
  7. The matter directly and substantially in issue in the subse-quent 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:

  1. Ex Parte
  2. Dismissal
  3. Decree
  4. Dismissal due to plaintiffs failure to produce evidence.

Explanation :- Sn 11 has 8 explanations : According to them

  1. The matter in the former suit should have been alleged by one party and admitted or denied by the other
  2. Competence of court is decided irrespective of a provision to an appeal in the earlier suit,
  3. “Matter” which might’or ought to have been agitated or defended in the earlier suit shall be the matter directly or substantially in issue.
  4. Relief, if not, granted in earlier suit shall be constructed as rejected.

Amendments of C.P.C. 1976

  1. 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.
  2. 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.
  3. The doctrine is now extended to independent proceedings and also to execution proceedings.

Constructive res judicata

According to Sn.ll, Explanation iv: 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.

Eg.: 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 and that 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 judicata and estoppel

Though res judicata is sometimes treated as part of the doctrine of estoppel, still they are essentially different

Res judicata Estoppel
Res judicata under Sn.ll, is based on public policy. It is essentially procedural. Based on “Nemo dabet bix vexari” (No one should be vexed twice) to put an end to litigous tendency. What is barred in the second suit on the same cause of action between the same parties and subject to other conditions of Sn.ll. Estoppel as per Sn.115 of the Evidence Act is by conduct of parties, or agreement or estoppel in pais.
This is essentially a rule of evidence. It is based on the rule that if a person induces another to alter his situation, he cannot take advantage of such altered situation. He will not be allowed to contradict himself.
Res judicata ousts the juris diction of the court in the second suit Deals with jurisdiction of the second court itself and bars it from exercising jurisdiction
Deals with jurisdiction of the second court itself and bars it from exercising jurisdiction This is by a party and hence he is prevented from going back on his earlier statement