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STAY OF SUITS[1]

Table of Contents

QUESTION BANK

Explain the principle of ‘Res-judicata’.
Explain the objects and principles of ‘Res-judicata’.
Explain the object and conditions of Res-sub-judice fully.
Explain the principles of Res-judicata and Res-sub-judice and give the differentiating points between them.
What is the rule of Res-sub-judice? Distinguish it from Res-judicata.
Under what conditions can a suit stay? Explain, giving relevant provisions of the Code of Civil Procedure.

SHORT NOTES

Res-judicata.
Res-sub-judice.
Enforcement of foreign judgment.

The Code provides some bars for entertaining certain suits. Some of those bars are mentioned under S. 10, 11 and 12 of the Code. The Code has inserted this scheme with the object of avoiding multiplicity of proceedings and conflict of decisions[2].

I. STAY OF SUIT (Res-sub-judice) (S. 10).-

This section deals with stay of civil suits or Res-sub-judice. It provides 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 and that the Court in which the previous suit is pending is competent to grant the relief claimed[3].

In other words, no Court shall proceed with the trial of any suit in which the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties and the Court before which the previously instituted suit is pending was competent to grant the relief sought e.g. if ‘A” files a suit against ‘B’ and ‘C’ for partition of ‘K’, ‘Kh’ and ‘G’ properties on 01/01/15. ‘B’ on 01/06/15 filed another suit against ‘A’ and ‘C’, asking for partition of the same properties. The Court will stay and subsequently instituted suit. The object is to prevent a multiplicity of suits on the same issues between the same parties and to avoid contrary judgments.

(1) Object of (S. 10)-

The object of this section is to prevent courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same cause of action, the same subject matter and the same relief[4]. To avoid a multiplicity of proceedings and conflicts of decisions is the main purpose of this section.

(2) Conditions to apply (S. 10)-

For the application of S. 10, the following conditions must be satisfied-

(i) Existence of two suits, one which is previously instituted and another which is subsequently instituted.

(ii) Parties should be the same in both suits.

(iii) Issue in the subsequent suit should be substantially an issue in the previous suit.

(iv) 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 outside India constituted by the Central Government or before the Supreme Court).

(v) The Court in which the previous suit is instituted must have jurisdiction to grant the relief claimed in the subsequent suit.

(vi) Litigation should be under the same title in both suits.

As soon as the conditions mentioned above are fulfilled, Court has to stay subsequent suit. Court has no discretion to differ.

However, there is no such bar on the power of Indian Courts from trying subsequently institute a suit if the previously instituted suit is pending in a foreign court (Explanation to S. 10).

Decree[5] passed in contravention of S. 10 is not a nullity and, therefore, cannot be disregarded in execution proceedings[6].

II. RES -JUDICATA[7] (S. 11)-

11 incorporates the principle of Res-judicata. Res-judicata is made up of two words viz. ‘res’ means ‘a thing’ or ‘a matter’ or ‘a question’, and ‘Judicata’ means ‘adjudged’, ‘adjudicated’ or ‘finally decided. Thus the expression ‘Res-judicata’ means ‘a thing or matter already adjudged, or adjudicated or decided’. It is said that res is judicata, i.e. the matter, once decided, shall not be adjudged again. S. 11 relates to a matter already adjudicated upon i.e. the matter once decided bars subsequent suit in which the matter directly and substantially in issue is previously decided[8].
11 enacts that once a matter is finally decided by a competent court, no party can be permitted to reopen it in subsequent litigation. Thus, if the suit of partition is once decided between ‘A’, ‘B’, ‘C’ parties relating to ‘K’, ‘Kh’ and ‘G’ properties, no fresh suit can be decided between the same parties relating to same properties.

In Hitendra Borker v. State of Chhatisgarah (AIR 2015 Chh. 165)

Chhattisgarh H.C held that- Subsequent writ petition based on the same cause of action and claiming some relief as claimed in an earlier writ petition is barred by the rule of res-judicata.

(1) Purposes of incorporation of the doctrine-

The rule of Res-judicata is based on the following maxims viz-

(i) ‘interest republicae ut sit finis litium’ i.e. it is in the interest of the State that there should be an end to litigation.

(ii) ‘nemo debet lis vexari pro una et eadem cause’ i.e. no person should be vexed (troubled) twice over the same cause.

(iii) ‘res judicata pro veritate occipiture’ i.e. a judicial decision must be accepted as correct.

(2) Conditions to apply the doctrine of Res-judicata-

The following conditions are necessary for the operation of the doctrine of Res-judicata-

(i) There must be two suits, one former suit and the other subsequent.

(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 suits.

(iv) the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in that former suit.

(v) the parties must be the same in both suits.

(vi) Such parties must have been litigating under the same title in the former suit.

Litigating under the same title means litigating in the same capacity. Thus, a suit brought by a person to recover possession from a stranger of temple property claiming it as heir of the deceased priest is no bar to a suit by him as manager of the temple property if the first suit is dismissed on his failure to produce the succession certificate for the two suits arise under different capacities i.e. title.

(3) Res-judicata and Res-sub-judice-

The rule of Res-judicata under S. 11 is distinguishable from the rule of Res-sub-judice (Stay of suit) under S. 10. The difference is as follows-

(i) Res-judicata relates to a matter already adjudicated upon, i.e. a matter on which judgment has been pronounced, while Res-sub-judice relates to a matter pending the judicial enquiry.

(ii) Res-judicata bars the trial of a suit or an issue which has been decided in a former suit, whereas, Res-sub-judice bars the trial of a suit pending decision in a previously instituted suit.

(4) The rule of constructive Res-judicata (Explanation iv to S. 11)-

The matter directly in issue may be actually in issue or constructively in the issue. In both, these matters rule of Res-judicata applies. A matter is actually in issue when it is alleged by one party and denied by the other. However, it is constructively in issue when the matter might or ought to have been made a ground of attack or defence in the former suit, which is not made. Explanation (iv) to S. 11 incorporates this principle of constructive Res-judicata. It lays down that any matter which might and ought to have been made ground of defence or attack in the such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. It is no answer to a plea of Res-judicata that an argument which could be advanced was not advanced in the previous suit. For example, if a suit is filed by A for the partition of joint Hindu family property without mentioning all properties in the suit and the Court decrees the suit. A can not again file a new suit mentioning those remaining properties because the subsequent suit for partition of reaming property is hit by the rule of constructive Res-judicata. It is because in the previous suit, he ought to have mentioned all the properties of the Joint family in a partition[9].

IV. BAR TO FURTHER SUIT[10] (S. 12).-

Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies (S. 12).

The rules that bar a fresh suit for the same cause are as follows-

(1) Omission to sue in respect of part of a claim (Order-2, Rule-2).

(2) Decree against plaintiff by default bars fresh suit (Order-9, Rule-2).

(3) Abatement of suit or its dismissal under Order 22 bars fresh suit. (Order-22, Rule-9).

(4) Withdrawal of a suit or abandonment of part of a claim without leave of Court bars a fresh suit (Order-23, Rule-1) etc.

NOTE-

FOREIGN JUDGMENT[11]:-

13 and 14 deal with the applicability of the rule of Res-judicata in case of foreign judgment. Provisions under the above sections embody the principle of international law that a judgment delivered by a foreign Court of competent jurisdiction can be enforced by an Indian Court and will operate as Res-judicata.

‘Foreign Court’ means a Court situated outside India and not established by the authority of the Central Government. Judgment delivered by it is called as ‘foreign judgment’.

(1) Judgment of foreign Court[12] as Res-judicata[13] (S. 13):-

It provides that a foreign judgment will operate as Res-judicata except in the following circumstances.

i) Where the judgment has not been pronounced by the Court of competent jurisdiction.
ii) Where the judgment is not given on the merits of the case.

iii) Where on the face of the proceedings, the judgment appears to be founded on an incorrect view of Indian Law or International Law.

iv) Where the proceedings in which the judgment was obtained are opposed to natural justice.
v) where it has been obtained by fraud.
vi) where it sustains a claim founded on a breach of any law in force in India.

In Narsimha Rao v. Venkata Lakshmi[14]

Facts- A husband obtained a decree of divorce from an American court against his wife residing in India, pleading that he was a resident of America.

The Supreme Court held– that the decree of divorce was without jurisdiction in as much as neither the marriage was solemnized nor the parties last resided together in America. Hence it cannot be enforced by an Indian Court.

(2) Presumption as to the foreign judgment[15] (S. 14)-

It provides that if, in an Indian Court, a certified copy of any foreign judgment is produced, it shall be presumed to be genuine; however, party challenging its genuineness can prove it to be not genuine.

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[1] पुर्विचा दावा प्रलंबीत असल्यास त्याच कारणास्तव असलेल्या नंतर दाखल दाव्यास स्थगिती, [यदि पहले का वाद लंबित है तो उसी आधार पर दायर बाद के वाद पर रोक]

[2] एका कारणासाठी बरेचसे दावे हाऊ नयेत व अश्या प्रकारच्या दाव्यात परस्पर विरूध्द निर्णय हाऊ नयेत हा उद्देष

[इसका उद्देश्य एक ही कारण के लिए कई मुकदमों से बचना है और ऐसे मुकदमों में परस्पर विरोधी निर्णयों से बचना है।]

[3] S10 Stay of suit– 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 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.

[4] National Institute of Mental Health and Neuro Sciences v. C. Parmeshwara (2004 AIOL Com 1243)

[5] हुकूमनामा,

[6] Sheopat Rai v. Warak Chand. (46 I.C. 419).

[7] पूर्व-निर्णय,

[8] S. 11 Res- judicata- 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, litigation 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 a 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 the 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 and ought to have been made ground of defence or attack in such former suit shall be deemed to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially 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 purposes of this section, be deemed to claim under the persons 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 the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.

Explanation VIII. – As 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.]

[9] Chandu v. Kirpa Ram, (AIR 1952 HP 65).

[10] पुढील दाव्यास विरोध, [आगे होनेवले दावे का विरोध करें,]

[11] परकीय न्यायनिर्णय, [विदेशी निर्णय,]

[12] भारताबाहेर अस्तित्वात असलेले आणि जे केंद्र सरकारच्या अधिकारान्वये स्थापन झालेले नाही असे न्यायालय म्हणजे ‘परदेशी न्यायालय’ [एक ‘विदेशी न्यायालय’ एक अदालत है जो भारत के बाहर मौजूद है और केंद्र सरकार के अधिकार के तहत स्थापित नहीं है।]

[13] परदेशी न्यायनिर्णय केव्हा निर्णायक असेल, [कब एक विदेशी निर्णय निर्णायक होता है,]

[14] (1991) 3 SCC 451.

[15] परदेशी न्यायनिर्णयाबाबत गृहीतक, [विदेशी निर्णय का अनुमान,]