“Analysis of the provisions of res sub judice and res judicata”

Submitted by

Priyanshi Soni

Batch: 2020-25, Division D, [Link].B. Group III

PRN: 20010223048

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), PUNE

In

July, 2023

Under the guidance of

Mr. Shamik Narain

(Co-Faculty)
Civil Procedure Code and Limitation Act -I
 CERTIFICATE

The project entitled “Analysis of the provisions of res sub judice and res judicata” submitted
to the Symbiosis Law School, NOIDA for Civil Procedure Code and Limitation Act I as a
part of Internal Continuous Evaluation is based on my original work carried out under the
guidance Mr. Shamik Narain. The Research work has not been submitted elsewhere for
award of any degree.

The material borrowed from other sources and incorporated in the research has been duly
acknowledged.

I understand that I myself could be held responsible and accountable for plagiarism, if any,
detected later on.

Priyanshi Soni
28th July, 2023
Introduction
Two key ideas in civil procedure— “res judicata and res sub judice”—help ensure the
effectiveness and finality of judicial processes. Both ideas are described in India's “CPC of
1908”, and they are essential to preventing multiple lawsuits on the same issue and avoiding
inconsistent rulings. The concepts of res judicata and res sub judice, as well as their
significance and application in the Indian legal system, will be examined in this analysis.

“Res sub judice”, meaning “a matter under judicial consideration” refers to the principle that
a matter pending before a court should not be the subject of discussion or adjudication in
another court. This principle aims to prevent conflicting judgments and ensure that a single
court has control over a particular matter until it reaches a final decision. The provisions of
res sub judice are mainly governed by “Section 10”.

“Res judicata” relates to a matter which is already adjudicated. It prevents the trial of a suit in
which the matter is “directly in issue” has been decided upon in a previous suit. A matter that
has been conclusively decided by a competent court cannot be re-litigated between the same
parties. Thus, it promotes the finality in judicial decisions and prevents the parties from
reopening settled issues. “Section 11 to 14” govern the provisions of “res judicata”.

Content
Res Judicata:

“Sec 11” forms the core provision of res judicata. It states that a judgment, decree, or order
passed by a “court of competent jurisdiction” on a “matter directly and substantially in issue”
between the parties or their privies shall operate as res judicata in subsequent proceedings.
The conditions for the application of the same are:

 The matter must be “directly and substantially” in issue in the previous suit.
 The previous suit “must have been decided by a court” of competent jurisdiction.
 The parties or their privies must be the same in both the previous and subsequent
suits.
 The decision in the previous suit must be final, and there should be no pending appeal
or review.

Further, Section 12 deals with the bar of further suits. It states that once a judgment or decree
has been passed in a suit, no subsequent suit can be filed between the same parties or their
representatives on the same cause of action. This provision prevents the parties from
initiating multiple proceedings on the same matter, ensuring the conclusion of disputes within
a reasonable time.1

Moreover, Section 13 specifies when a foreign judgment shall be conclusive. It states that a
foreign judgment, if passed “by a court of competent jurisdiction”, shall be conclusive
between the parties and operate as “res judicata” in India, subject to certain exceptions. The

1
C.K. Takwani, Civil Procedure Code, 1908, Eastern Book Company, 9th ed.,2021
exceptions include instances where the judgment was obtained by fraud, where it is contrary
to natural justice, or where it conflicts with an Indian law or a previous Indian judgment.

Section 14 deals with the doctrine of partial res judicata. It states that “a matter directly and
substantially in issue in a former suit” “between the same parties or their representatives”, if
subsequently raised, shall be deemed to have been already decided and cannot be re-agitated.
However, this provision applies only to matters that could and should have been raised in the
previous suit but were not.

The importance of res judicata was highlighted in “M Nagabhushan v. State of

Karnataka”2 wherein it was observed that if there is no such doctrine then there will be no
limit to litigations and rich litigants will succeed in finitely compelling the weaker party to
relinquish his rights and thus bring in the system of anarchy.

Res Sub Judice:

The purpose of “res sub judice” is to prevent unnecessary duplication of proceedings and to
maintain judicial discipline by respecting the authority and jurisdiction of the court where the
matter was initially raised.

Res sub judice means a matter under judicial consideration. It deals with the stay of civil
suits. it refers to the principle that a matter pending before a court should not be subject of
discussion or adjudication in another court this principle prevents conflicting judgments and
ensure that a single court has control over a particular matter until it reaches final decision.
Mainly section 10 governs this provision.

Section 10 states that where a matter is “pending before a court” and a subsequent suit is filed
on the “same cause of action” the latter suit shall be stayed until the former suit is disposed of
this provision ensures that the court where the matter was first instituted has the opportunity
to adjudicate upon it and avoid conflicting decisions from different courts as was also
discussed in the case of “Guru Prasad v. Bijay Kumar”3.

The provision only applies to a lawsuit's trial, not to its initiation. Additionally, it does not
prevent the court from issuing temporary orders like injunctions or stays, as was firmly
established in "Sennaji Kapuechand v. Pannaji Devachand"4. It applies to revisions and
appeals. The main goal of this is to restrict the plaintiff to a single lawsuit, to avoid two
conflicting judgements in the same court on the same relief. This clause allows for the request
for a stay to be submitted at any point during the litigation. A civil court may exercise its
inherent authority under Section 151 to further the interests of justice when the provisions
under Section 10 do not strictly apply.

The conditions to be fulfilled are -

2
(2011) 3 SCC 408
3
IR 1984 Ori 209, 1984 I OLR 447
4
(1931) 33 BOMLR 1596
  There must be two suits both of which are pending, one of which is previously
instituted;
 Matters in both the suits must be directly and substantially in issue;
 Both the suits must be between the same parties or their representatives;

In “Manzar v. Rema”5, the parties to the suit were same but the matter was different and so,
it was beyond the purview of section 10.

The previous suit must be pending in the same court in which the subsequent suit is instituted
or in any other court of India or even beyond the limits of India established by central
government or it can be before Supreme Court as well.

The court in which previous suit was instituted must have jurisdiction to grant relief claimed
in subsequent suit and the parties must be litigating under the same title in both the suits.

As per “Askar Ali v. Shamsul Islam alias Md. Shamsuddin” 6, if only one of the issues is
common in both the cases, that cannot be a ground for stay.

Analysis, scope, and conclusion

Res judicata deals with a matter which is already judged and thus prevents re-litigation
between the same parties on the same issues. On the other hand, res sub judice deals with a
matter which is pending that is under judicial consideration.

The scope of res judicata is very wide as was observed in “Daryao v. State of Uttar
Pradesh”7. In this case, petitioner filed petitions under Article 226 and when it was
dismissed, they again filed petitions under Article 32, Supreme Court held that the previous
judgement will act as “res judicata” in this case. Court observed that this doctrine applies to
petitions under Articles 32 and 226 as well and the “binding character of judgments
pronounced by courts” is an “essential part of rule of law”.

Moreover, this doctrine of “res judicata” is often treated as branch of “law of estoppel”. It is
technical and complicated as there can be discrepancies between “pecuniary/subject matter
competence” of the earlier forum and the new forum to adjudicate the subject matter. And as
the it is based on the concept of public interest, it becomes difficult to solve the issue of
competence in deciding the cases because if we stick to the literal interpretation, then it can
sometimes be compromising of the interest of parties.

In “Dees Piston v. State Bank of India”8, the matter was already pending before District
forum, Jaipur and the court held that the same matter between the same parties cannot be
filed before National Consumer Redressal Commission now.

5
33 DRL 49
6
4MLR (AD) 193
7
1961 AIR 1457, 1962 SCR (1) 574
8
(1991)2 CPR 148
In “Anurag and co. v. Additional District Judge”9, the Additional District Judge noted that
because the plaintiffs, causes of action, and amounts in each of the four civil lawsuits for
money recovery are distinct, they cannot be combined. The mere fact that the defendant is the
same cannot lead to the lawsuits being combined. The court came to the conclusion that there
are no pertinent circumstances for consolidation and that the Additional District Judge's
refusal to do so does not defeat the purpose in the given situation where parties and issues are
not similar, and the burden of proof lies on different plaintiffs.

In conclusion, these provisions in the “CPC” play a crucial role in maintaining the finality
and efficiency of legal proceedings. Res judicata prevents the re-litigation of matters that
have already been conclusively decided, while res sub judice ensures that matters pending
before a court are not simultaneously adjudicated upon in another court. These provisions
promote the principle of judicial economy, avoid conflicting judgments, and contribute to the
overall fairness and effectiveness of the Indian legal system.

9
AIR 2006 Raj 119, 2006 (2) WLC 160