MODULE II: OVERVIEW OF THE CODE

 Structure of the CPC: Body (158 sections), schedule (51 orders), appendixes (A-I)
 Applicability and extent
 Interrelationship between sections and orders
 Doctrines under the Code
STRUCTURE OF THE CPC
Introduction:
The Code of Civil Procedure, 1908 (CPC) is the procedural backbone of civil litigation in India.
While substantive laws like the Contract Act or Transfer of Property Act define rights and
obligations, the CPC prescribes how those rights are to be enforced through courts. The 158
sections contained in the main body of the Code establish the fundamental principles governing
civil proceedings, from the filing of a suit to its final execution. Understanding this structure is
essential for anyone studying or practicing civil law in India.
The CPC follows a logical progression: it begins with foundational definitions and basic
principles, moves through jurisdictional rules and suit procedures, addresses execution of
decrees, provides for appeals and reviews, and concludes with miscellaneous provisions
addressing special situations. This architecture reflects the lifecycle of a civil suit from inception
to conclusion.
Historical Background of the Code of Civil Procedure 1908
Before 1859, there was no single, unified law for civil procedure across India. Different courts,
such as provincial courts and Crown Courts, followed distinct systems.
 1859: The Civil Procedure Code (Act VIII of 1859) was introduced as the first standard
code. However, it was incomplete as it did not apply to top courts and the Sadar Diwani
Adalats.
 1861: After the Indian High Courts Act, 1861, which replaced the Supreme Court and
Sadar Adalats with High Courts (in Madras, Bombay, and Calcutta), the 1859 code was
applied there.
 1877: The Code of Civil Procedure 1877 succeeded the 1859 code, with subsequent
amendments in 1878 and 1879.
 1882: The third Code of Civil Procedure was adopted, which eventually was superseded
by the current Code of Civil Procedure in 1908 to address the shortcomings of the earlier
codes.
 1908: The current Code of Civil Procedure was enacted on March 21, 1908, and came
into effect on January 1, 1909.
Purpose of the Code of Civil Procedure (1908)
The preamble of the Code explicitly states that it was enacted to codify and revise the laws
governing the procedure of Civil Courts in India. Its main function is to enforce substantive
laws (which define rights and liabilities) by establishing a set of rules for the court proceedings.
It governs all proceedings in civil courts from the beginning of a suit until the final execution of
the decree or order.
The CPC is divided into two distinct parts: the Body of the Code and the Schedule.
Scheme of the Code of Civil Procedure 1908:

Parts Provisions

The Body of Contains 158 Sections divided into 11 Parts. These sections lay down
the Code the fundamental principles relating to the jurisdiction and powers of the courts.

The First Contains 51 Orders and their corresponding Rules. These detail the procedure,
Schedule method, manner, and mode in which the court's jurisdiction may be exercised. The
Rules are flexible and can be amended by the High Courts.

Initially, the CPC had five schedules (I to V); however, schedules II, III, IV, and V were later
repealed. The First Schedule contains the 51 Orders and also includes 8 Appendices that are
related to Forms/Model Formats for various processes (like Pleadings, Process, Decree,
Execution, etc.).
The 158 Sections are organized into Parts, covering different stages and aspects of a civil suit.

Sections Subject Matter

Sections 01- Preliminary (Basic definitions, short title, extent, and pecuniary jurisdiction)
08

Section 09- Part I – Suits in General (Jurisdiction, Res Sub Judice, Res Judicata, Place of Suing,
35B Judgement, Decree, Costs, etc.)

Section 36-74 Part II – Execution (Provisions related to executing decrees and orders)

Section 75-78 Part III – Incidental Proceedings (Power of court to issue Commissions and Letters
of Request)

Section 79-88 Part IV – Suits in Particular Cases (Suits by or against Governments, Foreign
Rulers, etc.)

Section 89-93 Part V- Special Proceedings, Arbitration, Public Nuisances And Other Wrongful
 Acts Affecting The Public

Section 94-95 Part VI- Supplemental Proceedings

Section 96- Part VII – Appeals (Appeals from Original Decrees, Appellate Decrees, Orders,
112 Appeals to the Supreme Court)

Section 113- Part VIII – Reference, Review, and Revision (Special powers of superior courts)
115

Sections 116- Part IX - Special Provisions Relating to The High Courts Not Being the Court of a
120 Judicial Commissioner

Section 121- Part X- Rules

131

Section 132- Part XI – Miscellaneous

158

Important Orders of the CPC 1908

The schedule of the CPC contains 51 orders and rules thereunder. However, for the purpose of
providing a brief overview, few important orders under the CPC and their significance is
provided below.

Order Subject Matter Significance

Order IV Institution of Suits A suit is instituted by the presentation of

a plaint to the court (Rule 1).

Order VI Pleadings Generally Lays down that pleadings (Plaint and Written
Statement) must state material facts only, not
evidence.

Order VII Plaint Details the contents of a plaint, including the

name of the court, facts constituting the cause
of action, and the relief claimed. Provides for
the rejection of a plaint (e.g., non-disclosure of
cause of action, under-valuation - Rule 11).

Order VIII Written Statement, Set-off, and Mandates the defendant to file a Written
Counter-claim Statement usually within 30 days (extendable
to 90 days).
 Order XXI Execution of Decrees and The largest Order, detailing the entire process
Orders Payment under decree for the execution (enforcement) of a decree.

Order XXXIX Temporary Injunctions and Deals with the grant of temporary injunctions
Interlocutory Orders and interlocutory orders (e.g., court
appointment of receiver) during the pendency
of the suit.

Order XLI Appeals from Original Decrees Governs the procedure for filing and hearing of
First Appeals. Section 96 provides the right to
appeal from an original decree.

Appendixes (A-I)
Appendices A to I of the Code of Civil Procedure (CPC), 1908, provide essential model forms,
pleadings, and procedural documents for civil suits in India. These appendices, annexed to the
First Schedule, standardize legal documents from plaint filing to execution and appeals, aiding in
pleading, process service, and witness summons.
Overview of Appendices A to I:
 Appendix A: Pleadings – Includes various plaint templates, such as money lent, specific
performance, and injunctions.
 Appendix B: Process – Contains forms for summons to defendants and witnesses.
 Appendix C: Discovery, Inspection, and Admission – Covers notices and affidavits for
discovering or inspecting documents.
 Appendix D: Decrees – Provides templates for different types of decrees, including
mortgage, dissolution of partnership, and administration suits.
 Appendix E: Execution – Forms for attachment, sale of property, and notice of execution.
 Appendix F: Supplemental Proceedings – Includes warrants of arrest and security bonds.
 Appendix G: Appeal, Reference, and Review – Forms for memorandum of appeal and
application for review.
 Appendix H: Miscellaneous – Contains forms for proxy, notice of suit, and affidavits.
 Appendix I: Statement of Truth – A mandatory affidavit form affirming that the
statements in pleadings are true, the document is in the party's possession, and no
material facts are concealed.
These forms are not mandatory to use verbatim but must be followed substantially to ensure
legal compliance.
The Code represents a complete and comprehensive procedural framework in itself regarding the
subjects it addresses. In the case of Iridium Indian Telecom Ltd. v. Motorola Inc., (2005) 2 SCC
145, the Supreme Court affirmed that the Code would govern all actions of a civil nature unless
otherwise specifically provided for by law.
Building on this foundational principle, the Supreme Court in Manohar Lal v. Rai Bahadur Rao
Raja Seth Hiralal, AIR 1962 SC 527, held that the provisions of the Code are to be construed as
exhaustive with regard to the matters dealt within it. This exhaustive character means that when
the Code specifically addresses a particular procedural matter, that provision represents the
complete law on that subject. Courts cannot add to, subtract from, or modify the Code's
provisions based on their own notions of what might be desirable or convenient.
However, the exhaustive character of the Code does not mean that courts are left helpless when
confronting procedural situations not specifically addressed by any provision. Recognizing this
reality, the Supreme Court in Ram Chand & Sons Sugar Mills Pvt. Ltd. Barabanki (Uttar
Pradesh) v. Kanhayalal Bhargava, AIR 1966 SC 1899, established an important qualification:
when there is no specific provision in the Code addressing a particular procedural issue, courts
must be guided by the principles of natural justice, equity, and good conscience. This principle
acknowledges that no code, however comprehensive, can anticipate every procedural situation
that might arise in the infinite variety of civil disputes.
Furthermore, the Supreme Court in Iridium Indian Telecom Ltd. v. Motorola Inc., (2005) 1 CTC
204 (SC), observed that some provisions of the Code do make certain exceptions, and it is
necessary to notice them. This observation highlights that the Code itself recognizes situations
where its general provisions may not apply or where special rules govern particular
circumstances.
Applicability and extent
The Code of Civil Procedure came into force on January 1, 1909, establishing a unified
procedural framework for civil litigation in India. While Section 1 provides that the Code
extends to the whole of India, this extension is subject to important territorial exceptions and
variations in application across different types of courts.
Section 1 excludes certain areas from the Code’s automatic application, including the State of
Nagaland and specific tribal areas. These exclusions recognize customary dispute resolution
systems in these regions. However, State Governments may extend the Code's provisions to these
areas, with necessary modifications, through official notification. In certain special areas like the
Amindivi Islands and specified agencies, the Code applies alongside existing local rules and
regulations.
The preamble states that the Code consolidates and amends the law relating to the procedure of
courts of civil judicature, but this expression is not defined in the Code. Courts must determine
through judicial interpretation whether a particular court or forum qualifies as a court of civil
judicature and to what extent the Code applies.
Legislatures can extend or restrict the Code's applicability through specific statutes. For example,
the Code applies to testamentary and intestate matters except where the Indian Succession Act,
1925, provides otherwise. Insolvency courts are courts of civil judicature, but their procedure is
governed by special insolvency legislation.
The Code makes specific provisions for different categories of courts. For Presidency Small
Cause Courts in Calcutta, Madras, and Bombay, only limited portions apply as specified in
Section 8 and Order 51. Provincial Small Cause Courts receive broader application, with the
entire Code extending to them except portions excluded by Section 7 and Order 50. For High
Courts exercising ordinary original civil jurisdiction, the entire Code applies except portions
specified in Sections 117 and 120, and Order 49, Rule 3. These exceptions preserve the High
Court’s constitutional powers and special position while subjecting their ordinary civil work to
the Code’s general framework.
Interrelationship between Sections and Orders:
The substantive part of the Code of Civil Procedure contains 158 sections. The First Schedule
comprises 51 Orders and Rules providing procedure. Appendices contain Model Forms of
Pleadings, Processes, Decrees, Appeals, Execution proceedings, etc. Sections 1 to 8 are
preliminary in nature. Section 1 provides for commencement and applicability of the Code.
Section 2 is a definition clause and a sort of statutory dictionary of important terms used in the
body of the Code.
Sections 3 to 8 deal with constitution of different types of courts and their jurisdiction. Part I
(Sections 9 to 35-B) and Orders 1 to 20 of the (First) Schedule deal with suits.
Section 9 enacts that a civil court has jurisdiction to try all suits of a civil nature unless they are
barred expressly or impliedly. Whereas Section 10 provides for stay of suit (res sub judice),
Section 11 deals with a well-known doctrine of res judicata. Sections 13 and 14 relate to foreign
judgments. Sections 15 to 21-A regulate the place of suing. They lay down rules as to jurisdiction
of courts and objections as to jurisdiction. Sections 22 to 25 make provisions for transfer and
withdrawal of suits, appeals and other proceedings from one court to another.
Orders 1 to 4 deal with institution and frame of suits, parties to suit and recognised agents and
pleaders. Order 5 contains provisions as to issue and service of summons. Order 6 deals with
pleadings. Orders 7 and 8 relate to plaints, written statements, set-offs and counter-claims. Order
9 requires parties to the suit to appear before the court and enumerates consequences of non-
appearance. It also provides the remedy for setting aside an order of dismissal of the suit of a
plaintiff and of setting aside an ex parte decree against a defendant.
Order 10 enjoins the court to examine parties with a view to ascertaining matters in controversy
in the suit. Orders 11 to 13 deal with discovery, inspection and production of documents and also
admissions by parties. Order 14 requires the court to frame issues and Order 15 enables the court
to pronounce judgment at the “first hearing” in certain cases. Orders 16 to 18 contain provisions
for summoning, attendance and examination of witnesses, and adjournments. Order 19
empowers the court to make an order or to prove facts on the basis of an affidavit of a party.
Sections 75 to 78 (Part III) and Order 26 make provisions as to issue of Commissions. Sections
94 and 95 (Part VI) and Order 38 provides for arrest of a defendant and attachment before
judgment. Order 39 lays down the procedure for issuing temporary injunction and passing
interlocutory orders. Order 40 deals with appointment of receivers. Order 25 provides for
security for costs. Order 23 deals with withdrawal and compromise of suits. Order 22 declares
effect of death, marriage or insolvency of a party to the suit. After the hearing is over, the court
pronounces a judgment. Section 33 and Order 20 deal with judgments and decrees. Section 34
makes provision for interest. Sections 35, 35-A, 35-B and Order 20-A deal with costs.
Parts IV and V (Sections 79-93) and Orders 27 to 37 lay down procedure for suits in special
cases, such as suits by or against government or public officers (Section 79 to 82 and Order 27);
suits by or against aliens, foreign rulers, ambassadors and envoys (Sections 83 to 87-B); suits by
or against soldiers, sailors and airmen (Order 28); suits by or against corporations (Order 29);
suits by or against partnership firms (Order 30); suits by or against trustees, executors and
administrators (Order 31); suits by or against minors, lunatics and persons of unsound mind
(Order 32); suits relating to family matters (Order 32-A); suits by indigent persons (paupers)
(Order 33); suits relating to mortgages (Order 34); interpleader suits (Section 88 and Order 35);
friendly suits (Section 90 and Order 36); summary suits (Order 37); suits relating to public
nuisances (Section 91) and suits relating to public trusts (Section 92).
Section 89 as inserted from 1 July 2002 provides for settlement of disputes out of court through
arbitration, conciliation, mediation and Lok Adalats. Parts VII and VIII (Sections 96 to 115) and
Orders 41 to 47 contain detailed provisions for Appeals, Reference, Review and Revision.
Sections 96 to 99-A and Order 41 deal with First Appeals. Sections 100 to 103 and Order 42
discuss law relating to Second Appeals. Sections 104 to 108 and Order 43 contain provisions as
to Appeals from Orders. Sections 109, 112 and Order 45 provide for Appeals to the Supreme
Court. Order 44 enacts special law concerning Appeals by indigent persons (paupers). Section
113 and Order 46 pertain to References to be made to a High Court by a subordinate court when
a question of constitutional validity of an Act arises. Section 114 and Order 47 permit review of
judgments in certain circumstances. Section 115 confers revisional jurisdiction on High Courts
over subordinate courts.
Part II (Sections 36 to 74) and Order 21 cover execution proceedings. The principles governing
execution of decrees and orders are dealt with in Sections 36 to 74 (substantive law) and Order
21 (procedural law). Order 21 is the longest Order covering 106 Rules. Part X (Sections 121 to
131) enables High Courts to frame rules for regulating their own procedure and the procedure of
civil courts subject to their superintendence.
Part XI (Sections 132 to 158) relates to miscellaneous proceedings. Explanation to Section 141
as added by the Amendment Act of 1976 clarifies that the expression “proceedings” would not
include proceedings under Article 226 of the Constitution. Section 144 embodies the doctrine of
restitution and deals with the power of the court to grant relief of restitution in case a decree is
set aside or modified by a superior court.
Section 148-A as inserted by the Code of Civil Procedure (Amendment) Act, 1976 is an
important provision which permits a person to lodge a caveat in a suit or proceeding instituted or
about to be instituted against him. It is the duty of the court to issue notice and afford an
opportunity of hearing to a caveator to appear and oppose interim relief sought by an applicant.
Sections 148 to 153-A confer inherent powers in every civil court. Section 148 enables a court to
enlarge time fixed or granted by it for doing any act. Section 149 authorises a court to permit a
party to make up deficiency of court fees on plaint, memorandum of appeal, etc. Section 151 is a
salutary provision. It saves inherent powers in every court to secure the ends of justice and also
to prevent the abuse of process of the court. Sections 152 to 153-A empower a court to amend
judgments, decrees, orders and other records arising from accidental slip or omission. Section
153-B as added by the Amendment Act of 1976 expressly declares that the place of trial shall be
open to the public. The proviso, however, empowers the Presiding Judge, if he thinks fit, to order
that the general public or any particular person shall not have access to the court.
Doctrines under the Code
Doctrine of Res Sub judice
Section 10 of the Code of Civil Procedure, 1908 deals with stay of suits. According to this
glaring provision, no court of competent jurisdiction shall proceed with the trial of any such suit
in which the matter in issue (directly and substantially) is pending already before a competent
court of same jurisdiction, the subsequent trial of the suit is put under veil, i.e., is abated.
Section 10 reads thus:
“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.”
Essentials of Section 10:
(i) the subsequent suit is directly and substantially in issue related to the previously filed suit; and
(ii) title, issue and parties are the same; and
(iii) the suit is filed before a competent court of same jurisdiction or having competent
jurisdiction to try such suits either within the limits of India or outside India or before the
Supreme Court.
The basic object of this provision is to prevent the courts of concurrent jurisdiction from
simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same
issue, cause-of-action, same subject-matter and the relief prayed for. The policy is to bring down
the unnecessary workloads of the courts and also to prevent the multiplicity of frivolous
litigations. It also aims to avert in convenience to the parties and gives effect to the Rule of Res
judicata.
Fundamental Test for Applicability
 The key test is whether a final decision in the previous suit would operate as res judicata
in the subsequent suit
 Section 10 applies only when the whole of the subject matter in both suits is identical
 There must be complete identity of the matter in issue in both proceedings
Meaning of "Directly and Substantially in Issue" (This was discussed in the case of National
Institute of M.H. & N.S. v. C. Parameshwara, AIR 2005 SC 242)
 The crucial words in Section 10 are "the matter in issue is directly and substantially in
issue" in the previously instituted suit
 "Directly and substantially in issue" is used in contra-distinction to "incidentally or
collaterally in issue"
 Section 10 applies only if the matter is centrally and primarily disputed in both suits, not
merely tangentially related
Exception for Foreign Courts
 Subject to provisions and conditions, there is no bar on the power of an Indian Court to
try a subsequently instituted suit if the previously instituted suit is pending before a
foreign court
 This exception is clear from the Explanation appended to Section 10
In an important case of Alka Gupta v. Narender Kumar Gupta, AIR 2011 SC 9, it was held that
Res judicata relates to the plaintiff's duty to put forth all the grounds of attack in support of his
claim,
About the enforcement of section 10, the Supreme Court, observed in case of Manohar Lai v. Rai
Bahadur Rao Raja Seth Hira Lal, AIR 1962 SC 527, “As soon as the conditions appended to
section 10 are satisfied, a court cannot proceed with the subsequently instituted suit since the
provisions contained in section 10 are mandatory in nature and no direction is left with the
Court.”
In P.V. Shetty v. B.S. Giridhar, (1982) 3 SCC 403, it was held that for the application of Section
10, the following conditions must be satisfied:
(1) The present section applies only to suits and not to applications and complaints.
(2) There must be two suits, one previously instituted and other subsequently instituted.
(3) The matter in issue in subsequent suit must be directly and substantially in issue in the
previous suit.
(4) The parties in the previous suit and the subsequent suit are the same.
(5) The parties are litigating under the same title in both the suits.
(6) The previously instituted suit must be pending in the same court in which the subsequent
suit is brought or in any other court in India or in any court beyond the limits of India
established continued by the Central Government or before the Supreme Court.
(7) The Court in which the previous suit is instituted must have jurisdiction to grant the relief
claimed in the subsequent suit.
In Rajesh Singh v. Manoj Kumar, AIR 2010 MP 16, the respondent plaintiff earlier had filed a
civil suit for declaration in respect of the property in dispute. Present petitioner filed his written
statement in the said suit denying the title of the plaintiff. Plaintiff, therefore, filed another suit
under the provisions of the Madhya Pradesh Accommodation Control Act against the present
petitioner for ejectment. In said suit also present petitioner denied the title of the plaintiff. In
view of the common issue, whether the plaintiff is the owner of the suit property, the defendant
filed an application under section 10 of the Code of Civil Procedure for staying the subsequent
suit for ejectment. Said application stood dismissed by the order which is impugned in this
petition. Therefore, it is held that section 10 of the CPC will not be attracted as the question of
title in suit for ejectment is not directly and substantially in issue but is incidental and collateral.
Matter in Issue:
 “Matter in issue” means the entire matter in controversy in the suit, not merely one of
several issues
 Mere fact that the subject matter of the previous suit overlaps with the subsequent suit
will not attract the section
 Where the earlier suit was for recovery of rent for a certain period and the subsequent suit
is for recovery of rent for subsequent years plus ejectment, the matter in issue in the two
 suits would not be deemed the same and Section 10 would not apply, as held in Bhola
Prasad v. Jagpata, 1954 ALJ 696
 The Allahabad High Court in P.P. Gupta v. East Asiatic Comp., AIR 1960 All 184, held
that “A court has inherent power to consolidate different suits between the same parties in
which the matter in issue is substantially the same”
 This consolidation power is distinct from the mandatory stay under Section 10;
consolidation is discretionary while Section 10 creates a mandatory bar
Section 10 CPC: Judicial Interpretations and Application
General Principles from Pukhraj D. Jain v. G. Gopalakrishna, (2004) 7 SCC 251
 Proceedings in civil suits must be conducted according to the Code of Civil Procedure,
1908
 Section 10 prevents courts from proceeding with trials where the matter in issue is
directly and substantially in issue in a previously instituted suit between the same parties
 Mere filing of an application under Section 10 does not put an embargo on the court's
power to examine the merits of the matter
 The object of Section 10 is to prevent courts of concurrent jurisdiction from
simultaneously trying two parallel suits in respect of the same matter in issue
 Section 10 enacts merely a rule of procedure; a decree passed in contravention is not a
nullity
 It is not for litigants to dictate how proceedings should be conducted; the court decides
the best course for expeditious disposal
 Stay of later suit proceedings may be necessary to avoid multiplicity of proceedings and
harassment of parties
 Where a subsequently instituted suit can be decided on purely legal points without taking
evidence, courts may decide relevant issues rather than keeping the suit pending when
filed with oblique motive to harass the other side
Gupte Cardiac Care Centre and Hospital v. Olympic Pharma Care Pvt. Ltd., 2004 AIR SCW
2427
Facts:
 M/s. Gupte Cardiac Hospital, Nasik filed a suit on December 20, 2001, in the Court of
Civil Judge, Nasik against Olympic Pharma Care Ltd., Delhi
  Dispute concerned a Heart and Lung Machine marketed by Olympic Pharma Care from
Germany, delivered and installed in the hospital
 Machine's performance was unsatisfactory
 Gupte Cardiac Care Hospital claimed recovery of Rs. 28,35,000 as advance
compensation equivalent to additional amount spent on purchasing another machine, plus
interest
 Olympic Pharma Ltd. subsequently filed a suit in the High Court of Delhi (Original Side)
on January 10, 2002, claiming Rs. 20 lakh as outstanding balance price of the machine
plus interest
Court's Analysis:
 Both suits arose out of the same transaction
 Cause of action of one party as plaintiff would be its defense in the suit where it is
arrayed as defendant
 Two plaintiffs and two defendants existed in the Nasik suit; one plaintiff and one
defendant in the Delhi suit, but substantial identity of parties existed in both suits
 Issues arising for decision would necessarily be the same in both suits
 Only one of the two suits could be decreed
 Decree in one suit in favor of the plaintiff would entail dismissal of the other suit
 This would avoid possibility of conflicting decrees
 Duplication of evidence, both oral and documentary, would be avoided
 Parties and courts would save time and energy that would needlessly be wasted twice
over
Supreme Court's Decision:
 The Nasik suit was instituted first in point of time
 By reference to Section 10 CPC, the trial of the Delhi suit, being the later suit, was liable
to be stayed
 It would be proper to transfer the Delhi suit to the Nasik court for purpose of hearing and
decision there

DOCTRINE OF RES JUDICATA: SECTION 11

Where section 10 stays the trial of subsequent suit, section 11 comes into force when section has
completed its role. Provision of section 11 enacts that once a matter is finally decided by a
competent court, no party can be permitted to re-open it in a subsequent litigation. The basic
difference between the provisions of section 10 and section 11 is that section 10 stays the
proceedings (subsequent suit) of two parallel litigations but when, once a previously instituted
suit is finally decided and becomes final in law, the parties are barred to reopen it (suit) in a
subsequent litigation.
The basic object and operation of the provisions of section 11 were rightly observed by the
Supreme Court in a reading case of Satyadhyan Ghosal v. Deorajin Debi, (1960) 3 SCR 590.
“The principle of res judicata is based on the need of giving finality to judicial decisions, what it
says is that once a res judicata, it shall not be adjudicated again. Primarily, it applies as between
past litigation and future litigation, when a matter - whether on a question of fact or of a
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 in appeal was
dismissed, or no appeal lies, neither party will be allowed in a future suit or proceedings
between the same parties to canvass the matter again.”
In State of Karnataka v. All India Manufacturers Organisation, (2006) 4 SCC 683, the Supreme
Court observed that, the doctrine of res judicata is based upon the three known maxims--
(1) Nemo debet bis vexari pro uno et eadem causa.--No man should be vexed twice for the same
cause.
(2) Interest republice ut sit finis litium.--It is in the interest of the state that there should be an
end to a litigation.
(3) Res judicata pro veritate acipiture.--A judicial decision must be accepted as correct.
Section 11 of the Code of Civil Procedure, 1908 reads:--
“No court shall try any suit or issue in which the matter directly and substantially in issue has
been directly an 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 purpose of this section, the competence of the 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 a 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 or ought to have been made ground of defence or attack in such former
suit, shall be deemed to have been a matter directly or subsequently 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 purpose of
this section, be deemed to claim under the person so litigating.
Explanation VII.--
The provisions of this section shall apply to a proceeding for the execution of a decree and
references in this section to any suit, issue or former suit shall be construed as references,
respectively, to a proceeding for execution of the decree, 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 a 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."
Essentials of res judicata
In order to constitute a matter as res judicata, the following conditions must be there:
(i) There must be two suits one former suit and the other subsequent suit;
(ii) The Court which decided the former suit must be competent to try the subsequent suit;
(iii) The matter directly and substantially in issue must be the same either actually or
constructively in both the suits;
(iv) The matter directly and substantially in issue in the subsequent suit must have been heard
and finally decided by the Court in the former suit;
(v) The parties to the suits or the parties under whom they or any of them claim must be the same
in both the suits;
(vi) The parties in both the suits must have litigated under the same title.
(1) Matter directly and substantially in issue.--
The "matter in issue" represents the specific controversy that the court is being asked to
determine, encompassing the particular relief sought following a specific provision of law by
way of a cause of action, where the title, parties, and issues are identical. It is the "matter in
issue" and not merely the subject matter of the suit that forms the essential test for both res
judicata under Section 11 and stay of proceedings under Section 10.
This distinction has practical significance: two suits may concern the same property or
transaction (same subject matter) but if they raise different questions for determination, the
matter in issue differs. For example, one suit may seek a declaration that a sale deed is void due
to fraud, while another may seek specific performance of the same deed; the subject matter (the
sale deed and property) is identical, but the matters in issue (validity versus enforceability) are
different.
Similarly, different reliefs sought from the same transaction do not necessarily mean the same
matter is in issue. The courts have consistently held that for Section 10 to apply, there must be
complete identity of the actual controversy being adjudicated, not merely similarity of facts,
parties, or property involved.
(2) Between the same parties.--
Means either the subsequently proposed suit should be between the same parties or their legal
heirs or assignees.
(3) Litigating under the same title.--
Same title means same capacity, i.e., the demand should be of the same quality in the second suit
as was in the first suit. The term "same title" has nothing to do either with cause-of-action or with
the subject-matter of the two suits.
(4) Competency of court to try subsequent suit.--
Fourth condition is that the court which has decided the former suit must have been a court
competent to try the subsequent suit. Explanation II to section 11 makes it clear for the purpose
of res judicata, the competence of court shall be determined irrespective of any provision as to a
right of appeal from the decision of such court.
In an important case of Ram Gobinda v. Bhakta Bala, AIR 1971 SC 664 it was held that the
question whether there is bar of res judicata does not depend on the existence of a right of appeal
but on the question whether the same issue has been heard and finally decided.
(5) Heard and finally decided.--
This expression means that the Court who decided the matter in issue should have duly applied
its judicial mind and had decided the matter following the due procedure of law.
In case of Madukar D. Shende v. Tarabai, AIR 2002 SC 637, it was decided that the plea of res
judicata is mixed question of law and fact. It was not raised in plaint and no issue or res judicata
was framed and tried in the suit. There was no submission that raising plea of res judicata made
before any lower courts or High Court. It cannot be raised before Supreme Court for the first
time and at hearing.
Ramachandra Dagdu Sonavane v. Vithu Hira Mahar, AIR 2010 SC 818
 Appellants filed an earlier suit before the Civil Court seeking permanent injunction
against respondents
 Appellants claimed they were watandars of the suit lands and were in peaceful possession
and enjoyment of the lands
 Respondent defended the suit claiming he was the adopted son of the deceased and
therefore had right, title, and interest in the suit land
 Trial Court, after elaborate discussion, answered the issue framed against the respondent
 Trial Court concluded that the respondent failed to prove he was the adopted son of the
deceased
 In subsequent proceedings before the Sub-Divisional Officer, the issue arose whether the
respondent was the adopted son of the deceased
 Supreme Court held that since the issue of adoption was already decided between the
same parties by a competent Civil Court, the Sub-Divisional Officer could not decide that
issue
 Without giving any decision on that issue, the Sub-Divisional Officer could not have
allowed the claim of the respondent
 The principles of res judicata would apply to the proceedings before the Sub-Divisional
Officer
 Once a matter in issue has been decided by a competent court, subsequent forums cannot
re-decide the same issue between the same parties
Chandrabhai K. Bhoin v. Krishna Arjun Bhoin, AIR 2009 SC 1675
 Supreme Court held that an order passed without jurisdiction would be a nullity
 Such an order is coram non-judice (before one who is not a judge)
 It is non est (does not exist) in the eye of law
 Principles of res judicata would not apply to such cases
 This establishes an important exception: res judicata protects only decisions by courts
with proper jurisdiction