1.

RES SUB JUDICE: STAY OF SUIT [Section 10]:

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.
Explanation: The pendency of a suit in a foreign Court does not preclude
the Courts in India from trying a suit founded on the same cause of action.

Nature and scope of the section:

This section provides that the court shall not proceed with the trial of a suit
brought before it if
(i) the matter in issue is also directly and substantially in issue in
a previously instituted suit between the same parties and
(ii) that previous suit is pending for adjudication in the same or any
other court in India.

Object of the section:

The underlying object of this section is to:
(a) avoid two parallel litigations that are similar in respect of cause of
action, subject matter and relief in two courts;

(b) protect a person from multiplicity of proceedings;

(c) prevent the courts of concurrent jurisdiction from simultaneously
adjudicating upon two parallel litigations in respect of same cause of action,
same subject matter and same relief; and
(d) avoid conflict of decisions.
It may be appreciated that had Section 10 not been enacted, the
consequences would have been disastrous. The litigants would have been
free to file as many suits as they wished on the same subject matter
claiming the same relief. The number of suits would have been unlimited
without any control or check. Section 10 is meant to curb such a situation.
It restricts the plaintiff to a single litigation and obviates the possibility of
two conflicting verdicts by two or more courts in respect of same relief.
In Indian Bank v. Maharashtra State Co-operative Marketing
Federation Limited, the Supreme Court held that the object of the
prohibition contained in Section 10 is to prevent the courts of concurrent
jurisdiction from simultaneously trying two parallel suits and also to avoid
inconsistent findings on the matters in issue. The provision is in the nature
of rule of procedure and does not affect the jurisdiction of the court to
entertain and deal with the later suit nor does it create any substantive
right in the matter.

In National Institute of Medical Health and Neuro Sciences v. C.

Parameshwara, a pharmacist was removed from service for
misappropriation of drugs. The order of removal was set aside by the
Labour Court. The employer challenged the order of Labour Court by filing
a Writ Petition. The employer also filed a civil suit for recovery of loss caused
to him. Hence, an application was moved to stay the suit. The Court
observed that the object of Section 10 is to prevent the courts of concurrent
jurisdiction from simultaneously trying two parallel suits between same
parties in respect of same matter in issue. In view of this, the application
was held to be not tenable as the subject matter of two proceedings is
entirely distinct and different.

When the provision is attracted:

The conditions required to be satisfied for application of this section are:

(a) There must be two suits, one previously instituted and the other
subsequently instituted.
(b) The matter in issue in the second suit must be directly and substantially
in issue in the first suit. In other words the matters in issue should be
identical in both the suits.
(c) The previously instituted suit should be pending before the court in
which the subsequent suit is brought or in any other court in India.

(d) Two suits should be between the same parties.

(e) The parties to the suit must be litigating under same title i.e., same
capacity.
(f) The court trying the previous suit must be competent to grant relief
asked for in the subsequent suit.
In Aspi Jal v. Khushroo Rustom Dadyburjor, it was held that for Section
10 to be attracted it is essential that entire subject-matter in controversy
must be the same between previous suit and subsequent suit. Mere
common grounds in previous suit and subsequent suit would not
attract Section 10.

When the provision does not apply :

The provision does not apply in following circumstances

(a) When the conditions mentioned above are not satisfied
(b) Since, the provision applies only to the suits instituted in a civil court,
therefore, it has no application to any other proceeding of a different nature
than a suit instituted under any other statute.

(c) As for attracting this section, it is necessary that one of the two
proceedings must be in a suit, the provision has no application in cases
where neither the earlier nor the later proceeding is in a suit.

(d) When either previously instituted or the subsequently instituted suit is

not tenable. This provision applies only to those suits which are
legally maintainable.

Doctrine of lis pendens

Lis means the 'suit' and Pendens means 'continuing or pending'. Thus the
maxim 'lis pendens' means "pendency of a suit in a Court" or "a suit
pending" or "a pending legal action". The doctrine finds its origin in a Latin
maxim "Ut pendent nihil innovetur" which means that during litigation
nothing should be changed. It embodies the principle that the subject
matter of the suit (property) should not be transferred to third party during
the pendency of the suit, and if it is transferred, the transferee is bound by
the result of the suit.
 2. RES JUDICATA (SECTION 11)
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.
Meaning of Res Judicata:
- In simple terms, the doctrine of res judicata means rule of finality or
conclusiveness of judgment.
- The essence of the provision contained in Section 11 is that once a
matter is finally decided by a competent court, it cannot be reopened
in a subsequent litigation.
- Thus, this section grants finality to the judgment of the competent
court.
- Such finality is in relation to the points of the fact and points of law
that have been decided earlier.
- Such finality acts as a bar on every subsequent suit between same
parties.
- In absence of this rule, there will be no end to litigation and parties
would be put to constant trouble, harassment and expenses.

In Standard Chartered Bank v. Andhra Bank Financial Services Ltd.,

it was held that what is enacted in Section 11 is not fountainhead of doctrine
of res judicata, but merely the statutory recognition of the same which rests
on the public policy- practice and procedure.
In Alka Gupta v. Narender Kumar Gupta, the Supreme Court held that
'Res judicata' means a thing adjudicated that is an issue that is finally
settled by judicial decision.

Conception of Res Judicata:

The doctrine of res judicata is based on three maxims viz.,
(i) Nemo debet bis vexari pro una et eadem causa, which means
that no man should be vexed twice for the same cause;
(ii) Interest republicae ut sit finis litium, which means that it is in
the interest of the State that there should be an end to a
litigation; and
 (iii) Res judicata pro veritate occipitur, which means that a judicial
decision must be accepted as correct. Therefore, this doctrine
embraces the essence of all the three maxims.
In Kopargaon S.S.K. Ltd. v. State of Maharashtra, it was held that rule
of conclusiveness of judgment as to the points decided earlier of fact or law
or of fact and law; issue should be between same parties or between parties
under whom they or any of them claim.

Object of Res Judicata:

The doctrine is directed towards bringing litigations to an end. A successful
party may not be put to harassment opening up the same issue again. A
litigation which cannot attain finality defeats its very purpose. If, there is
no finality to it, the dispute can never be resolved. It is the duty of the
State to see that disputes brought before judiciary are decided finally as
early as possible.

Section 11 is checks such an unwarranted situation. The object of this

section is to :-
(a) give finality to the judgment of the court;

(b) protect a person from endless proceedings; and

(c) avoid re-determination of same issues which have already been
adjudicated upon.
In U.P. State Road Transport Corporation v. State of U.P., it was held
that principle of res judicata is based on the need of giving a finality to
judicial decisions. The principle which prevents the same case being twice
litigated is of general application and is not limited to the specific words of
Section 11.
When Res Judicata applies:
Following conditions must exist for attracting the doctrine:

(a) There must be two suits, one former and the other later.

(b) The matter in issue should be identical in both the suits.

(c) Two suits should be between the same parties.
(d) The parties to the suit of must be litigating under same title i.e., same
capacity.

(e) The former suit must have been heard and finally decided by the court.
(f) The court must be competent to grant relief sought for in the subsequent
suit.

When Res Judicata shall not apply:

The doctrine of Res Judicata shall have no application in following cases-

(a) When a decree is a nullity being passed by the court having no
jurisdiction
In Chandrabhai K. Bhoir v. Krishna Arjun Bhoir, it was held that an
order passed without jurisdiction would be a nullity and will be a coram non
judice. It is non-est in the eye of law. Principle of res judicata would not
apply to such cases.
In Nawab Shaqafath Ali Khan v. Nawab Imdad Jah Bahadur the
Supreme Court held that when an appeal against the final decree is passed,
legality of the said order could be challenged in the appeal. Only because a
civil revision application has not been filed, the same would not attract
principle of res judicata as an appeal from the final decree could still be
maintainable.

b) Where the suit has been dismissed for non-prosecution

In State of Uttar Pradesh v. Jagdish Saran Agrawal, it was held that
where the suit has been dismissed for non-prosecution, the decision cannot
be said to be on merits and consequently, order would not operate as res
judicata.

(c) Where the suit has been summarily dismissed

In Delhi Development Authority v. Bholanath Sharma, Supreme Court
held that a judgment of Supreme Court would not operate as res judicata
where SLP has been summarily dismissed without going into merits of case
and no question of law was decided.

(d) Where the suit is not decided on merits

In Sajid Ismail v. Sairabi Abdul Gaffar Shaikh (since deceased)
through her LRs. Mehtab Yunus Khan, the Bombay High Court pronounced
on applicability of res judicata. It was held that when earlier suit was not
decided on merits and there was no evidence recorded as it was disposed
of as abated, the present suit is maintainable and not barred by principle
of res judicata.
(e) Where an application is held to be infructuous
In Noharlal Verma v. District Co-operative Central Bank Limited,
Jagdalpur, the question before Supreme Court was whether a decision
holding an application as infructuous and not deciding on merits would
operate as res judicata. It was held "No".

(f) When a fresh cause of action arises

In Director, Cent. Marine Fisheries Res. Inst. v. A. Kanakkan, the
Apex Court held that when a fresh cause of action arises, the principles of
res judicata would have no application.

In S. Nagaraj v. B.R. Vasudeva Murthy, it was held that res judicaia will
not operate as a bar for entertaining a fresh cause of action. However, even
where a fresh cause of action arises, issues between the parties which have
been decided cannot be re-opened before the court for fresh adjudication
between the same parties.

(g) When petition is withdrawn with liberty to prosecute remedy

before other forum
In Haryana State Co-operative Land Development Bank v. Neelam,
the workman had withdrawn the writ petition for prosecuting remedy before
Labour Court. The writ petition was not adjudicated on merits. It was held
that withdrawal would not operate as res judicata.

(h) When no speaking judgment is passed

In Union of India v. Pramod Gupta, it was held that the principle of res
judicata shall have no application in a case where a judgment is not a
speaking one.
(i) Where the two forums have separate and independent
jurisdiction
In Kirit Kumar v. Union of India, the Apex Court observed that the
principle of res judicata is founded on the principle that where a court of
competent jurisdiction has decided an issue, the same issue cannot be
agitated again and again but this doctrine is inapplicable to the cases where
the two forums have separate and independent jurisdiction.

(j) Where proceedings are criminal in nature

In Devendra v. State of Uttar Pradesh, it was held that applicability of the
principle of res judicata in criminal proceedings is impermissible.

(k) When the plea of Res Judicata may be raised:

The res judicata must be specifically pleaded. It requires to be proved by
the party raising the plea. The plea must be raised at the proper stage of
proceedings. The party who is likely to be affected by the bar of res judicata
must have notice of the same and the court must afford to such party a
reasonable opportunity of defence. The court cannot suo motu decide the
plea of res judicata, unless it is raised in defence. However, the plea of res
judicata may be waived by the party.

(l) Who has to prove Res Judicata :

The party who contends that an earlier decision operates as res judicata
between the parties has to prove the same. In other words, the onus of
proof as to application of res judicata lies on the party which raises the plea
to that effect. Such party has to establish that the matter in issue in
subsequent suit was also in issue in an earlier suit which was between the
parties and which has been finally adjudicated upon by a competent court.

3. FOREIGN JDGEMENT
"Foreign judgment" means a judgment of a foreign court. In other words,
a foreign judgment means an adjudication by a foreign court upon a mat
ter before it. Thus, judgments delivered by courts in England, France,
Germany, USA, etc. are foreign judgments.

NATURE AND SCOPE

- Section 13 embodies the principle of res judicata in foreign
judgments.
- This provision embodies the principle of private international law that
judgment delivered by a foreign court of competent jurisdiction can
be enforced in India.
- This is thus an exception to the general rule that on the doctrine of
territorial sovereignty, a judgment delivered by one country cannot
be enforced in any other country in the absence of international
agreements, and municipal courts of every country are under
 constitutional obligation to give effect to the law of its own sovereign
legislature.
-
- The rule laid down in Section 13 is substantive law and not merely a
rule of procedure.
- The section is not confined in its application to plaintiffs. A defendant
is equally entitled to non-suit the plaintiff on the basis of a foreign
judgment.

Illustration:
A sues B in a foreign court. The suit is dismissed. The judgment will operate
as a bar to a fresh suit by A against B in India on the same cause of action.

FOREIGN JUDGMENT WHEN NOT BINDING: CIRCUMSTANCES:

SECTION 13
Under Section 13 of the Cod
In the following six cases, a foreign judgment shall not be conclusive:

(1) Foreign judgment not by a competent court;

(2) Foreign judgment not on merits

(3) Foreign judgment against International or Indian Law;

(4) Foreign judgment opposed to natural justice;

(5) Foreign judgment obtained by fraud;

(6) Foreign judgment founded on a breach of Indian Law.

(1) Foreign judgment not by a competent court

It is a fundamental principle of law that the judgment or order passed by
the court which has nó jurisdiction is null and void. Thus, a judgment of a
foreign court to be conclusive between the parties must be a judgment
pronounced by a court of competent jurisdiction.

(2) Foreign judgment not on merits

In order to operate as res judicata, a foreign judgment must have been
given on merits of the case. 21 A judgment is said to have been given on
merits when, after taking evidence and after applying his mind regarding
the truth or falsity of the plaintiff's case, the judge decides the case one
way or the other. Again, a judgment is said to be given on merits when
opportunity is extended to the parties to put forward their case and the
court after considering rival submissions has rendered final judgment.

(3) Foreign judgment against International or Indian law

A judgment based upon an incorrect view of international law or a refusal
to recognise the law of India where such law is applicable is not conclusive.

4) Foreign judgment opposed to natural justice

It is the essence of a judgment of a court that it must be obtained after due
observance of the judicial process, i.e. the court rendering the judgment
must observe the minimum requirements of natural justice-it must be
composed of impartial persons, act fairly, without bias, and in good faith;
it must give reasonable notice to the parties to the dispute and afford each
party adequate opportunity of presenting his case. A judgment which is the
result of bias or want of impartiality on the part of a judge will be regarded
as a nullity and the trial "coram non judice".

5) Foreign judgment obtained by fraud

It is a well-established principle of Private International Law that if a for
eign judgment is obtained by fraud, it will not operate as res judicata, It
has been said, "Fraud and justice never dwell together" (fraus et jus
nunquam cohabitant); or "Fraud and deceit ought to benefit none" (frans
et dolus nemini patrocinari debent).

6) Foreign judgment founded on breach of Indian law

Where a foreign judgment is founded on a breach of any law in force in
India, it would not be enforced in India. The rules of Private International
Law cannot be adopted mechanically and blindly. 50 Every case which
comes before an Indian court must be decided in accordance with Indian
law. It is implicit that the foreign law must not offend our public policy.
 4. DIFFERENCES BETWEEN SUBSTANTIVE LAW AND
PROCEDURAL LAWS

Meaning and nature of substantive laws and procedural laws

Both the substantive laws and the procedural laws are two related sets of
legal systems and are interdependent on each other.
Substantive laws are the essential laws that govern any particular field and
declare the rules and lay down the principles. The Indian Penal Code (IPC)
which lays down different types of crimes and defines their respective
punishments is one of the examples of substantive laws in India.
Procedural laws are the set of procedures to be followed for making,
administering and enforcing substantive laws. For example, the Code of
Criminal Procedure (CrPC) defines the procedures to be followed in criminal
proceedings in India.

Differences between substantive laws and procedural laws

Topic Substantive Law Procedural Law
Subject matter Substantive laws deal
with the legal rights Procedural laws describe the
and obligations of the ways and methods following
individuals among which substantive law is
themselves and enforced.
towards the state.

Objective These laws control and Procedural laws exclusively

govern the rule of law deal with the proceedings in
as a whole. the court and the methods to
start a legal case.

Context of Substantive laws are Procedural laws are applied

application applied only in legal in both legal and non-legal
contexts.
 contexts including
proceedings of litigation.

Regulation Substantive laws are Procedural laws are

regulated by the Acts regulated by statutory laws
of Parliament or only.
governmental
implementations.

Capacity Substantive laws have

Individual capacities to Procedural laws only can
decide the course of dictate the paths any legal
any legal proceedings. proceeding should follow.