AISHWARYA COLLEGE OF EDUCATION(LAW)

SESSION-2024-25

B.A .LL.B –9th SEMESTER

SUBJECT – CODE OF CIVIL PROCEDURE -I

TOPIC- The Comprehensive Analysis of Section 10 and Section 11 of the

Code of Civil Procedure, 1908

SUBMITTED TO - SUBMITTED BY -

Dr. Suman Sandar ,Ma’aM Dushyant Singh Bhati

(ASST. PROFESSOR)
 INDEX

Sr.No Content Page No.

1 Section 10 – Res Sub-Judice

1.1 Introduction

1.2 Objective

1.3 Conditions for the applicability of Sec. 10

1.4 Section 10 applies to legally maintainable

suits

1.5 Section 10 applies only to suits filed in civil

courts

1.6 Question of Jurisdiction

1.7 Consolidation of suits

1.8 Inherent power to grant stay
1.9 Additional Case Laws
2 SECTION 11– RES JUDICATA
2.1 Introduction
2.2 Objective of res judicata
2.3 Essential conditions to res judicata
2.4 Exceptions to Res Judicata
2.5 Criticisms
3 Basic difference between Res-judicata and
Res-sub judice
4 Conclusion
5 Bibliography
 ACKNOWLEGEMENT

On this great occasion of successful completion of my assignment

on The Comprehensive Analysis of Section 10 and Section 11 of
the Code of Civil Procedure, 1908 I would like to thank my
lecturer Dr. Suman Sandar ,who has guided and assisted me to
complete the assignment. Without his support I would not have
finished the assignment within time.

I would also like to take again this opportunity to thank our

Coordinator Mrs. Dr Neelima Arora , Ma’am and my friends and
family members, without them this assignment could not have
been completed in a short duration.
 SECTION 10 – RES SUB-JUDICE

Introduction

Sec.10 of the Code of Civil Procedure, 1908 provides the rule with regard to stay of suits where things
are under consideration or pending adjudication by a court.
The section reads as:
“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.”
A plain reading of Sec. 10 of the Code of Civil Procedure makes clear that where the subject matter of
the suit is one and the same and the parties are also the same, under such circumstances, if there are two
suits between the parties, it is subsequent suit which has to be stayed and not the previous one.1
The purpose of the section is to bring finality in the judgment and to avoid the contradictory decision by
the two different court, as there is a very good possibility that in case when matter is simultaneously
being decided by different courts of concurrent jurisdiction, the courts may come up with different
decisions and then it will be very difficult to finalize which decisions to be abided by.
The section does not of course empower one court to stay the proceedings of another court. For example,
a district court exercising insolvency jurisdiction under the Provincial Insolvency Act, 1920, cannot
under this section stay a suit pending against the insolvent in a subordinate court.2 However, since the
provisions of the section are mandatory, the court before which the subsequent suit is pending ought to
stay it where all the conditions laid down in the section exist.3

1
M.V. Rajashekhar v. M.V. Rajamma, ILR 2004 KAR 2302.
2
Official Receiver v. Palaniswami, (1925) 49 MLJ 203.
3
C.F. Sequeira v. P. Francisco, Civil Revision. Appeal. No. 19 of 1975 (High Court of Bombay at Goa, 16/9/1975).
 Objective

The object underlying Sec. 10 is to avoid two parallel trials on the same issue by two courts and to avoid
recording of conflicting findings on issues which are directly and substantially in issue in a previously
instituted suit.4 It is to obviate conflict of decisions of two
contradictory decrees being passed in respect of the same subject-matter between the same parties that
the present section has been enacted.
Thus, the basic object of Sec. 10 is to protect a person from multiplicity of proceedings between the same
parties.5
Hence, the two fold objects are:
 Avoid wasting court resources.
 Avoid conflicting decisions.

Conditions for the applicability of Sec. 10

In order to attract the application of this section it is necessary that the following conditions must be
fulfilled:
(1) A previously instituted suit is pending in a court;
(2) The matter in issue in the second suit is also directly and substantially in issue in a previously
instituted suit;
(3) 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 or continued
by the Central Government or in the Supreme Court;
(4) The court in which the previous suit is pending has jurisdiction to grant the relief claimed in the
subsequent suit;
(5) The parties in the two suits are the same; and
(6) The parties must be litigating under the same title in both the suits.

4
National Institute of Mental Health & Neuro Science v. C. Parameshwara, AIR 2005 SC 242; Indian Express Newspapers v
Basumati Pvt. Ltd., AIR 1969 Bom 40.
5
Munnilal v. Sarvajeet, AIR 1984 Raj 22.
Section 10 applies to legally maintainable suits
Section 10 is not the permissive provision, but is a restrictive provision. Section 10 applies only to those
suits which are legally maintainable. Section 10 cannot be invoked to make the subsequently filed suit
maintainable.
Despite all provisions to avoid more than one suit some unavoidable circumstances permits involvement
of same issues in two suits. Those suits are like cross suits or where law permits second suit specifically
like withdrawal of suit with permission to file fresh suit or due to accrual of cause of action or entitlement
for the reliefs subsequent to filing of earlier suit to the plaintiff and plaintiff had no right to claim relief
at the time of filing of earlier suit and where court either cannot grant relief after taking note of subsequent
event or the court refuses to entertain subsequent event for molding the relief such suits are maintainable
and are permissible.
Even where such suits are lawfully maintainable still law, under Sec. 10 prohibits simultaneous trial of
issue and if, due to any reason, trial of suit proceeded, the decision given on an issue which is earlier in
time has been made final by Sec. 11 of the Code of Civil Procedure.
When specific provisions of law prohibits trial of even maintainable suit, then interpreting Sec. 10 and
11 of the Code of Civil Procedure as a permissive provision making maintainable two suits
simultaneously will be against the legislative intention.6

Section 10 applies only to suits filed in civil courts

Sec. 10 suggests that it is preferable to a suit instituted in the civil court and it cannot apply to proceedings
of other nature instituted under any other statute. The object of Sec.10 is to prevent courts of concurrent
jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same
matter in issue.
In a recent case, the Delhi High Court declined to apply this section in an application under the Arbitration
Act on the ground that whereas under Sec. 33 of that Act the court can only declare as to the existence
or otherwise of an arbitration agreement, relief awardable under Sec. 20 is more comprehensive.7
In simultaneous prosecution of the defendant in the criminal case, the civil suit on the same subject-
matter can be stayed only under very exceptional and compelling circumstances. There is no question to
stay the civil suit instituted against defendants during the pendency of the criminal case when they have
filed their written statement in the civil suit, no question of any embarrassment or premature disclosure

6
Hari Ram v. Lichmahiye, AIR 2003 Raj 319.
7
M. Malsters Pvt. Ltd. v. Allied Engineers, AIR 1975 Del 123.
of their defense in the criminal case arises in this case.8
Where in a suit--application for stay of suit is filed on ground that subject-matter of suit and second
appeal was same, however, applicants failed to discharge their onus by establishing that both suits arose
out of same cause of action, same subject-matter and same relief. In fact, cause of action in subsequent
suit arose when order in suit under second appeal was passed. The application for stay of subsequent suit
was found liable to be dismissed.9
Question of Jurisdiction
Jurisdiction with reference to the subject matter of a claim depends upon the allegations in the plaint and
not upon allegations in the written statement.
The question of jurisdiction raised by the defendant is a question that is virtually between the plaintiff
and the court itself. The plaintiff invokes the jurisdiction of the court and the court has always jurisdiction
to decide for itself whether it has jurisdiction to try the suit before it.
There is nothing in Sec. 10 of the Code of Civil Procedure to show or suggest, that, if an issue of
jurisdiction has been raised in a previously instituted suit, the defendant cannot invoke provision of Sec.
10 of the Code of Civil Procedure in subsequent suit unless he withdraws or waives that objection.10 An
application cannot be dismissed as premature on ground that copy of plaint was not produced or written
statement was not filed in instant suit.11

Consolidation of suits
This method is convenient to the litigants as the evidence is recorded in two or more suits and the
deposition of the same witness in different suits is avoided, saving the time of litigants, lawyers and the
court. However, it is to be noted that if the two suits pending between the parties are at different stages
of the trial, say, for example, one suit is pending at a pre-issue stage and the other at the defendant’s
evidence, there is no point in consolidation of these suits.
Two suits were filed between same parties, involving common question arising between them. It was
held that consolidation and simultaneous hearing of the suits is not barred. Section 10 merely lays down
a procedure and does not vest any substantive right in the parties. The claim in the later suit, was his

8
Peroonhayil Remotty v. Cheruvath Gangadharan, AIR 2001 Ker 276.
9
Devanayagi Ammal v. Manicka Konar, AIR 2006 Mad 1429.
10
Escorts Construction Equipment Ltd. v. Action Construction Equipment Pvt. Ltd., AIR 1999 Del 73.
11
V.P. Vrinda v. K. Indira Devi, AIR 1995 Ker 57.
defence in earlier suit. The court had inherent powers to consolidate the two suits and to direct analogous
hearing of the same, in the ends of justice.12
This section does not bar the power of the court to consolidate for the purpose of hearing an earlier suit
and a later suit.13
Inherent power to grant stay
In the case of Manohar Lal Chopra v. Rai Bahadur Rao Seth Hiralal ,14 it has been held that inherent
jurisdiction of the court to make orders ex debito justitiae is affirmed by Sec. 151 of the Code of Civil
Procedure but that jurisdiction cannot be exercised so as to nullify the provisions of the Code of Civil
Procedure.
Where the Code of Civil Procedure deals expressly with a particular matter, the provision should
normally be regarded as exhaustive. In the present case, as stated above, Sec. 10 has no application and
consequently, it was not open to the high court to by-pass s 10 of the Code of Civil Procedure by
invoking Sec. 151 of the Code of Civil Procedure.15 It is only in case where the proceedings are fraud,
vexatious or want of bona fide, malicious & improper, then it comes within the meaning of abuse of the
process of the court.16

Additional Case Laws

[1] Escorts Construction Equipment Ltd. v. Action Construction Equipment Pvt. Ltd. 17
Facts
The defendant had filed, for stay of present suit, an application under Sec. 10 of C.P.C., on ground that
the matter in controversy is pending in Jamshedpur Court also. This was opposed by plaintiff on ground
that, the defendants had raised issue of jurisdiction of Jamshedpur Court to entertain same suit; and that
application under Sec. 10 of C.P.C. can be filed in the present suit, only if objection with respect to lack
of jurisdiction was withdrawn in Jamshedpur Court.
Judgment (Relevant Excerpt)
Delhi High Court held that the conditions requisite to invoke Sec. 10 of C.P.C. are:

12
Dr. Guru Prasad Mohanty v. Bijoy Kumar Das, AIR 1984 Ori 209.
13
P.P. Gupta v. East Asiatic Co., AIR 1960 All 184.
14
AIR 1962 SC 527
15
National Institute of Mental Health & Neuro Science v. C. Parameshwara, AIR 2005 SC 242.
16
M.V. Rajashekhar v. M.V. Rajamma, ILR 2004 KAR 2302.
17
AIR 1999 Del 73
  Matter in issue in both the suits to be substantially the same.
 Suit to be between the same parties or parties litigating under them.
 Previously instituted suit to be in the same Court or a different Court, which has jurisdiction to
grant the relief asked.
There is nothing to the effect that defendant should not question the competency of previous Court in the
previously instituted suit, and there remains the fact that the plaintiff in their defense against Sec.10 of
C.P.C., had not stated the Jamshedpur Court is competent. Thus, relief was granted to the defendant.
[2] Pukhraj D. Jain v. G. Gopalakrishna18 (Landmark Case)
Facts
The appellant were the owners of the suit property (residential building at Jayanagar, Bangalore). They
executed an agreement to sell the suit property in favor of Dr. G. Gopalakrishna (Respondent No. 1) for
a consideration of Rs. 1,42,500/- and received Rs. 42,500/- by way of advance. The respondent No. 1
was also put in possession of the ground floor of the property.
After sometime, the respondent No. 1 issued a legal notice rescinding the contract and claimed refund of
the advance amount paid by him. He filed a suit against the appellant claiming the amount which had
been paid by way of advance. After considerable period of time, respondent No. 1 moved an amendment
application seeking permission to convert the suit into one for specific performance of the agreement of
sale.
This application was rejected by the trial court on the ground that the suit for specific performance had
become barred by limitation. The Revision Petition preferred against the said order was dismissed by the
High Court at the admission stage.
The appellant (Pukhraj D. Jain and his four sons) purchased the property in dispute from the original
owners, for Rs. 3,60,000/- and they were put in possession of the first floor of the building.
Thereafter, Respondent No. 1 filed an amendment application seeking an amendment of the plain and
claiming an additional amount of Rs. 125 towards the cost of the legal notice. The amendment application
was allowed and the respondent No. 1 was required to pay an additional court fee of Rs. 12.50 in view
of the enhanced claim. However, instead of paying aforesaid amount, the respondent No. 1 filed a memo
stating that he was not in a position to pay the court fee and as such the plaint may be rejected being
deficiently stamped. The trial court decreed the suit for recovery of the amount.
Though the suit filed by respondent No. 1 was decreed yet he preferred a revision petition challenging
the judgment and decree passed in his favour. The High Court though observed that it was an unusual

18
AIR 2004 SC 3504
revision filed by a plaintiff yet allowed the same, set aside the judgment and decree of the trial court and
rejected the plaint.
The appellants after execution of the sale deed in their favor filed a suit seeking eviction of respondent
No. 1 from the ground floor of the house in dispute and also for mesne profits.
The respondent No. 1 filed another suit being against appellant in the Court of City Civil Judge,
Bangalore for specific performance of the agreement. In this suit issue No.3 relating to the bar of
limitation and issue No.4 relating to the maintainability of the suit were framed.
The respondent No. 1 also filed an application under section 10 C.P.C. seeking stay of his own suit on
the ground that the issues involved were also directly and substantially in issue in a previously instituted
suit being which had been filed by the appellants for his eviction from the ground floor of the house and
for possession.
The Addl. City Civil Judge, Bangalore dismissed the suit after deciding issues wherein he held that the
suit was barred by limitation and the same was not maintainable.
The respondent No. 1 preferred an appeal in the High Court against the judgment and decree of the Addl.
City Civil Judge, Bangalore. The High Court allowed the appeal and set aside the judgment and decree
of the Addl. City Civil Judge and remanded the matter to the trial court to dispose of the application
moved by the respondent No. 1 (plaintiff) under section 10 of C.P.C. for stay of his suit.
It is this judgment and order which is subject matter of challenge in the present appeal.

Issue Raised
Whether application under Sec.10 of C.P.C. should be considered at first instance before deciding issues?

Judgment (Relevant Excerpt)

The proceedings in the trial of a suit have to be conducted in accordance with provisions of the Code of
Civil Procedure. Sec. 10 of C.P.C. no doubt lays down that 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.
However, mere filing of an application under section 10 C.P.C. does not in any manner put an embargo
on the power of the court to examine the merits of the matter. The object of the section is to prevent
Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same
matter in issue. The section enacts merely a rule of procedure and a decree passed in contravention thereof
is not a nullity. It is not for a litigant to dictate to the court as to how the proceedings should be conducted,
it is for the court to decide what will be the best course to be adopted for expeditious disposal of the case.
In a given case the stay of proceedings of later suit may be necessary in order to avoid multiplicity of
proceedings and harassment of parties.
However, where subsequently instituted suit can be decided on purely legal points without taking
evidence, it is always open to the court to decide the relevant issues and not to keep the suit pending
which has been instituted with an oblique motive and to cause harassment to the other side.
Ratio Decidendi
Mere filing of an application under Sec. 10 of C.P.C. does not in any manner put an embargo on power
of court to examine merits of matter.

SECTION 11– RES JUDICATA

Introduction
The concept of Res Judicata finds its evolvement from the English Common Law system, being derived
from the overriding concept of judicial economy, consistency, and finality. From the common law, it got
included in the Code of Civil Procedure,1908 and which was later as a whole was adopted by the Indian
legal system.
The Section read as:
“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.”
It essentially meant to:
1. Once a matter is finally decided by a competent court, no party can be permitted to reopen it in
subsequent litigation.
2. A final judicial decision pronounced by a judicial tribunal having competent jurisdiction over the cause
or matter in litigation, and over the parties thereto.
As explained by Justice Das Gupta in the case of Satyadhyan Ghosal v. Deorjin Debi19 that “When a

19
AIR 1960 SC 941
matter, whether on a question of fact or law, has been decided between two parties in one suit and the
decision is final, either because no appeal was taken to the higher court, or no appeal lies in such case,
neither party will be allowed in the future suit between the same parties to canvass the matter again.”
The important words are “has been heard and finally decided”. The bar applies only if the matter directly
and substantially in issue in the former suit has been heard and finally decided by a court competent to
try such suit. That clearly means that on the matter or issue in question there has been an application of
the judicial mind and a final adjudication made.

Objective of res judicata

The doctrine of res judicata is based on three maxims:
a) Nemo debet bis vexari pro una et eadem causa (no man should be punished twice for the same cause);
b) Interest reipublicae ut sit finis litium (it is in the interest of the state that there should be an end to a
litigation);
c) Res judicata pro veritate occipitur (a judicial decision must be accepted as correct).
Thus, the doctrine of res judicata is the combined result of the public policy reflected in maxims (b) and
(c) and private justice expressed in the maxim (a), and they apply to all judicial proceedings whether
civil or criminal.
In Lal Chand v. Radha Krishan20, this principle of res judicata is founded on justice, equity and good
conscience. Once a final judgment has been announced in a lawsuit, the subsequent judges who are
confronted with a suit that is identical to or substantially the same as the earlier one, they would apply
the Res Judicata doctrine ‘to preserve the effect of the first judgment’. This is to prevent injustice to the
parties of a case supposedly finished, but perhaps mostly to avoid unnecessary waste of resources and
time of the Judicial System.
Therefore, the same case cannot be taken up again either in the same or in the different Court of India.
This is just to prevent them from multiplying judgments, so a prevailing plaintiff may not recover
damages from the defendant twice for the same injury.
For making Res Judicata binding, several factors must be met up with:

 identity in the thing at suit;

 identity of the cause At suit;
 identity of the parties to the action;

20
(1977) 2 SCC 88
  identity in the designation of the parties involved;
 whether the judgment was final;
 whether the parties were given full and fair opportunity to be heard on the issue.
Regarding designation of the parties involved, a person may be involved in an action while filling a given
office and may subsequently initiate the same action in a differing capacity. In that case Res Judicata
would not be available as a defense unless the defendant could show that the differing designations were
not legitimate and sufficient .
Therefore, Res Judicata in a nut shell is a judicial concept wherein the Courts do not allow a petition to
be filed in the same or to the other Court for the doctrine of Res Judicata would apply and the party would
not be allowed to file the petition or to continue the petition (as the case may be).
§ Essential conditions to res judicata
For the application of this section, the following conditions must be satisfied:
(1) There must be two suits, one previously instituted and the other subsequently instituted.
(2) The matter in issue in the subsequent suit must be directly in the issue in the previous suit.
(3) Both the suits must be between the same parties or their representatives.
(4) The court which decided the previous suit is must have jurisdiction to grant the relief claimed in the
subsequent suit.
(5) Such parties must be litigating under the same title in both the suits.

Former Suit: Explanation I

Section 11 provides that no court shall try any suit or issue in which the matter has been directly and
substantially in issue in a former suit between same parties and has been heard and finally decided.
Explanation I to section 11 provides that the expression ‘former suit’ shall denote a suit which has been
decided prior to suit in question whether or not it was instituted prior thereto.
Right of Appeal: Explanation II
Explanation II makes it clear that for purpose of res judicata, the competence of court shall be determined
irrespective of any provision as to right of appeal from decision of such court.
The question whether there is a bar of res judicata does not depend on existence of a right of appeal but
on the question whether the same issue, under the circumstances mentioned in section 11 has been heard
and finally decided.
Matter Directly and Substantially in issue: Explanation III
A matter directly and substantially on issue in former suit will operate as res judicata in subsequent suit.
Directly means at once, immediately, without intervention. The term has been used in contradistinction
to collateral or incidental issue.
Substantially means essentially, materially or in a substantial manner. The question whether matter is
direct and substantial depend on effect of decision given on such issues on final judgement.
Matter constructively in issue: Explanation IV
A matter directly and substantially in issue may again be so either actually or constructively. A matter is
actually in issue when it is alleged by one party and denied or admitted by other. It is constructively in
issue when it might or ought to have been made a ground of attack or defense in the former suit.
Explanation IV to section 11 lays down that any matter which might or ought to have been made a ground
of attack or defense in former suit but which has not been made a ground of attack or defense, shall be
deemed to have been a matter directly and substantially in issue in such suit.
The principal underlying this explanation is that where parties have been given a chance of controverting
a matter, that should be taken to be the same thing as if the matter had been actually controverted and
decided. The primary objective is to cut short litigation by compelling parties to rely upon all grounds of
attack or defense and if they fail to do so it would be treated to have been raised and decided.
Relief claimed but not granted : Explanation V
It provides that if a relief is claimed in a suit, but is not expressly granted in the decree, it will be deemed
to have been refused and the matter in respect of which the relief is claimed will be res judicata.
Representative suit: Explanation VI
It deals with representative suits i.e suits instituted by or against a person in his representative as
distinguished from individual capacity.
The following conditions must be satisfied before a decision may operate as res judicata under
explanation VI
i. There must be a right claimed by one or more persons in common for themselves and others not
expressly named in the suit.
ii. The parties not expressly named must be interested in such right.
iii. The litigation must have been conducted bona fide and on behalf of all parties interested
iv. If suit is under order 1 rule 8 all conditions laid down therein must have strictly compiled with.
Execution proceedings: Explanation VII
This explanation specifically provides that the provisions of section 11 will directly apply to
execution proceedings also.
Competent Court: Explanation VIII
 In order that a decision in a former suit may operate as res judicata, the court which decided that
suit must have been either
 A court of exclusive jurisdiction
 A court of limited jurisdiction
 A court of competent jurisdiction

In Pukhraj D. Jain v. G. Gopalakrishna,21 it was held that if the court is satisfied that subsequent suit
can be decided purely on the legal point, it is open to the court to decide such suit. The provisions of Sec.
11 of the Code of Civil Procedure are not at all exhaustive even though it has very wide and enlarged
amplitude.
The section “does not affect the jurisdiction of the Court” but “operates as a par 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, then they are not
competent i.e. they become barred to try the subsequent suit in which such issue has been raised.
Thus, this doctrine of Res Judicata is a fundamental concept based on public policy and private interest.
It is conceived in the larger public interest, which requires that every litigation must come to an end. It
therefore, applies to civil suits, execution proceedings, arbitration proceedings, taxation matters, writ
petitions, administrative orders, interim orders, criminal proceedings, etc.
An ordinary litigation being a party or claiming under a party of a former suit cannot avoid the
applicability of Sec. 11 of C.P.C. as it is mandatory except on the ground of fraud or collusion as the case
may be. The onus of proof lies on the party relying on the theory of Res Judicata. The provisions of Sec.
11 of C.P.C. are “not directory but mandatory”. The judgment in a former suit can be avoided only by
taking recourse to Sec. 44 of the Indian Evidence Act on the ground of fraud or collusion.
The basic point involved in the Nature of the doctrine of Res Judicata is that the doctrine tries to bring in
natural and fair justice to the parties and that too by barring the other party to file a multiple number of
suits either for justice or for harassing the other party.

21
(2004) 7 SCC 251
Exceptions to Res Judicata

However, there are limited exceptions to Res Judicata that allow a party to attack the validity of the
original judgment, even outside of appeals. These exceptions - usually called collateral attacks - are
typically based on procedural or jurisdictional issues, based not on the wisdom of the earlier court’s
decision but its authority or competence to issue it. A collateral attack is more likely to be available (and
to succeed) in judicial systems with multiple jurisdictions, such as under federal governments, or when
a domestic court is asked to enforce or recognize the judgment of a foreign court.
In addition, in cases involving due process, cases that appear to be Res Judicata may be re-litigated. An
instance would be the establishment of a right to counsel. People who have had their liberty taken away
(that is, imprisoned) may be allowed to be re-tried with a counselor as a matter of fairness.
In the case of Jallur Venkata Seshayya v. Thadviconda Koteswara Rao22, a suit was filed in the Court
for the purpose of declaring certain temples public temples and for setting aside alienation of endowed
property by the manager thereof. A similar suit was dismissed by the Court two years ago and the
plaintiffs here contended that it was the gross negligence on the part of the plaintiffs (of the previous suit)
and hence the doctrine of Res Judicata should not be applied. But, the Privy Council said that finding of
a gross negligence by the trial court was far from a finding of intentional suppression of the documents,
which would amount, to want of bona fide or collusion on the part of the plaintiffs in prior suit. There
being no evidence in the suit establishing either want of bona fide of collusion on the part of plaintiffs as
res judicata.
In the case of Beliram and Brothers v. Chaudari Mohammed Afzal23, it was held that where a minors
suit was not brought by the guardian of the minors bona fide but was brought in collusion with the
defendants and the suit was a fictitious suit, a decree obtained therein is one obtained by fraud and
collusion within the meaning of the Indian Evidence Act, 1872, Sec. 44 and does not operate Res Judicata.
The principle of Res Judicata in Code of Civil Procedure, 1908, Sec. 11 is modified by the Indian
Evidence Act, 1872, Sec. 44 and the principles will not apply if any of the three grounds mentioned in
Sec. 44 exists.
In Forward Construction Co. v. Prabhat Mandal24, the Supreme Court was directly called upon to
decide the question. The apex court held that the principle would apply to public interest litigation

22
AIR 1937 PC 1
23
(1948) 50 BomLR 674
24
AIR 1986 SC 391
provided it was a bona fide litigation.

Criticisms

Res Judicata does not restrict the appeals process, which is considered a linear extension of the same
lawsuit as the suit travels up (and back down) the appellate court ladder. Appeals are considered the
appropriate manner by which to challenge a judgment rather than trying to start a new trial. Once the
appeals process is exhausted or waived, Res Judicata will apply even to a judgment that is contrary to
law.
There are limited exceptions to Res Judicata that allow a party to attack the validity of the original
judgment, even outside of appeals. These exceptions—usually called collateral attacks—are typically
based on procedural or jurisdictional issues, based not on the wisdom of the earlier court's decision but
its authority or on the competence of the earlier court to issue that decision. A collateral attack is more
likely to be available (and to succeed) in judicial systems with multiple jurisdictions, such as under
federal governments, or when a domestic court is asked to enforce or recognize the judgment of a foreign
court.
In addition, in matters involving due process, cases that appear to be Res Judicata may be re-litigated.
An example would be the establishment of a right to counsel. People who have had liberty taken away
(i.e., imprisoned) may be allowed to be re-tried with a counselor as a matter of fairness.

BASIC DIFFERENCE BETWEEN RES-JUDICATA AND RES-SUB JUDICE

1) Res-judicata deals with cases, which have already been decided by a Court of competent jurisdiction,
but Res-sub judice deals with cases which are pending before the Court of competent jurisdiction.
2) In Res-judicata the Court shall not try at all a case, which has previously tried, while in Res-sub
judice the Court shall not proceed with a case, in-respect of which a suit is already pending.
3) Res-judicata prohibits second trial of the same dispute between same parties, while Res-sub judice
prohibits proceedings of two parallel suits between same parties.

So it can be concluded that by applicability of Res- judicata the Court shall not try a suit, which has
already been tried, on the other side by applicability of Res-subjudice the Court shall not proceed-with a
suit which is already pending before the Court of competent jurisdiction. The main spirit behind these
two principles is that no person should be call in question twice for the same cause of action.
CONCLUSION
Sec. 10 deals with the doctrine of res sub-judice and Sec. 11 deals with the doctrine of res-judicata. Sec.
10 provides rules with regard to stay of suits where things are under consideration or pending adjudication
by a court. On the other hand section 11 provides the rule that relates to a matter already adjudicated by
a court. It bars the trial of a suitor an issue in which the matter directly and substantially in issue has
already been adjudicated upon in a former suit.
Sec. 10 and Sec. 11 are mandatory. Res sub-judice in latin means “under judgement”. It denotes that a
matter or case is being considered by court or judge when two or more cases are filed between same
parties on the same subject matter, the competent court has power to stay proceeding. However the
doctrine of res-subjudice means stay of suit. This code provides rules for the civil court in respect of the
doctrine of res subjudice. This rule applies to trial of suit and not the institution of suit.
The Doctrine of Res Judicata can be understood as something which restrains the either party to “move
the clock back” during the pendency of the proceedings. The extent of Res Judicata is very-very wide
and it includes a lot of things which even includes Public Interest Litigations. This doctrine is applicable
even outside the Code of Civil Procedure and covers a lot of areas which are related to the society and
people. The scope and the extent has widened with the passage of time and the Supreme Court has
elongated the areas with its judgments.
 BIBLIOGRAPHY

 SIR DINSHAW FARDUNJI MULLA, THE CODE OF CIVIL PROCEDURE, 106 (2013).

 C.K. TAKWANI, CIVIL PROCEDURE WITH LIMITATION ACT, 129 (2014).

 M.P. JAIN, THE CODE OF CIVIL PROCEDURE, 124 (2011).

 DR. AVTAR KHAN, PRINCIPLES OF MOHAMMEDAN LAW, 22 (2014).

 www.lexisnexis.com

 www.scconline.com

 www.westlawindia.com