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Code of Civil Procedure Section
Code of Civil Procedure Section 12. Bar to further suit.
13. When foreign judgment
not conclusive.—A foreign judgment shall be conclusive as to any matter thereby
directly adjudicated upon between the same parties or between parties under
whom they or any of them claim litigating under the same title except—
(a) where it has not been
pronounced by a Court of competent jurisdiction;
(b) where it has not been
given on the merits of the case;
(c) where it appears on the
face of the proceedings to be founded on an incorrect view of international law
or a refusal to recognise the law of 1[India] in cases in which such
law is applicable;
(d) where the proceedings in
which the judgment was obtained are opposed to natural justice;
(e) where it has been
obtained by fraud;
(f) where it sustains a
claim founded on a breach of any law in force in 1[India].
Note 1: Subs. by Act 2 of
1951, s. 3, for “the States”.
Code of Civil Procedure Section 14. Presumption as to foreign judgments.
More Reading:
Code of Civil Procedure Section 11. Res judicata.
12. Bar to further suit
—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.
Part in Red is
original provisions from CPC reproduced here for reference.
(Para 12)
Principle of res judicata would apply to proceedings initiated before the
Central Administrative Tribunal. If the said principles were applicable, the
bar to maintain a fresh application on the self-same cause of action would
attract provisions of Section 12 of the Code of civil Procedure or the general
principles of res judicata.
2) Ramchandro Dagdu Sonavane (Dead) by L.Rs. & Ors. v. Vithu Hiro Mahar (Dead) by LRs. & Ors., (2009) 10 SCC 273: (Para 31) Civil – Res judicata - Application of - Section 11 of Code of Civil Procedure, 1908 Whether the Judgment and Decree passed in the original suit would operate as res judicata in subsequent proceedings, including the proceedings before the High Court in the second appeal and writ petition filed by the Respondents - Held, a plea decided even in suit for injunction touching the title between the same parties, would operate as res judicata - In the present case, all the issues has been decided in earlier suit and has been confirmed in the regular second appeal and the issue decided therein was binding on the parties - Each one of the conditions necessary to satisfy the test as to the applicability of Section 11 of CPC is satisfied.
3)
Reference:
Code of Civil Procedure Section 10. Stay of suit.
Section 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, 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 a suit
in question whether or not it was instituted prior thereto.
Explanation II.—For the
purposes 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 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.
1[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. —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.]
Note 1: Ins. by Act 104 of
1976, s. 6 (w.e.f. 1-2-1977).
Simplified Explanation:
Section
11 contains the rule of conclusiveness of the judgment which is based
partly on the maxim of Roman jurisprudence “interest reipublicae ut sit
finis litium” (it concerns the State that there be an end to law suits) and
partly on the maxim “nemo debet bis vexari pro una et eadem causa” (no
man should be vexed twice over for the same cause).
The
section does not affect the jurisdiction of the court but operates as a bar 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, competent to try the
subsequent suit in which such issue has been raised.
Even an erroneous decision on a question of law attracts the doctrine of res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata.
It is a
settled legal proposition that the ratio of any decision must be understood in
the background of the facts of that case and the case is only an authority for
what it actually decides, and not what logically follows from it. “The court
should not place reliance on decisions without discussing as to how the factual
situation fits in with the fact-situation of the decision on which reliance is
placed.”
Even
otherwise, a different view on the interpretation of the law may be possible but
the same should not be accepted in case it has the effect of unsettling
transactions which had been entered into on the basis of those decisions, as
reopening past and closed transactions or settled titles all over would stand
jeopardised and this would create a chaotic situation which may bring
instability in the society.
If the
issue has been already decided on merit between the same parties in an earlier
litigation, it cannot be decided again. Explanation (4) thereof, also provides
for constructive res judicata which has to be read like the provisions
of Order II Rule 2. It also applies to the proceedings in the Suit.
Even an erroneous decision on a question of law attracts the doctrine of res judicata between the parties to it. The correctness of a judicial decision has no bearing upon the question whether or not it operates as res judicata. In such an eventuality, re-agitation of an issue is barred by the principle of constructive res judicata.
It would be impermissible to permit any party to raise an issue inter se where such an issue under the very Act has been decided in an early proceeding. Even if res judicata in its strict sense may not apply but its principle would be applicable. Parties who are disputing, if they were parties in an early proceeding under the very Act raising the same issue would be stopped from raising such an issue both on the principle of estoppel and constructive res judicata.
In certain conditions res judicata also binds the co-defendants. The principle of res judicata has been held to bind co-defendants if the relief given by the earlier decision involved the determination of an issue between co-defendants. There are following three conditions which govern the applicability of res judicata:
1. There must be a conflict of interest between the defendants concerned
2. It must be necessary to decide this conflict to give the plaintiff the relief claimed
3. The question between the defendants must be finally decided.
The principle
of res judicata would not apply if the decree has been obtained by practicing
misrepresentation or fraud on the court, or where the proceedings had been taken
all together under a special Statute. More so, every finding in the earlier
judgment would not operate as res judicata. Only an issue “directly” and
“substantially”, decided in the earlier suit, would operate as res judicata.
Where the decision has not been given on merit, it would not operate in case
against the judgment and decree of the court below the appeal is pending in the
appellate court, the judgment of the court below cannot be held to be final,
and the findings recorded therein would not operate as res judicata.
The doctrine would not apply if the judgment is by a Court lacking inherent jurisdiction or when the judgment is non-speaking.
If the matter has not been decided on merit earlier, the doctrine of res judicata is not applicable.
The object of Explanation IV is to compel the party to take all the grounds of attack or defence in one and the same suit.
Some stray observations by the Trial Judge, in an earlier case on the question which was not directly and substantially in issue – would not bar the subsequent suit.
The principle analogous to Res Judicata or constructive Res judicata does not apply to criminal cases. Where the entire proceedings have been initiated illegally and without jurisdiction, in such a case – even the principle of Res judicata (wherever applicable) would not apply.
The Supreme Court laid down 3 exceptions to the rule of Res Judicata
(i) When judgment is passed without jurisdiction
(ii) When matter involves a pure question of law.
(iii) When judgment has been obtained by committing fraud on the Court.
For judgement replications please read this blog.
Reference:
1) http://www.nja.nic.in/16%20CPC.pdf
Code of Civil Procedure Section 9. Courts to try all civil suits unless barred.
10. 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 1[India] have jurisdiction to grant the relief claimed, or in any
Court beyond the limits of 1[India] established or continued by 2[the
Central Government 3***.] and having like jurisdiction, or before 4[the
Supreme Court].
Explanation.—The pendency of
a suit in a foreign Court does not preclude the Courts in 1[India]
from trying a suit founded on the same cause of action.
Note 1: Subs. by Act 2 of
1951, s. 3, for “the States”.
Note 2: Subs. by the A.O.
1937, for “the G.G. in C.”
Note 3: The words “or the
Crown Representative” omitted by the A.O. 1948.
Note 4: Subs. by the A.O.
1950, for “His Majesty in Council”.
Code of Civil Procedure Section
Code of Civil Procedure Section 9. Courts to try all civil suits unless barred.
PART I: SUITS IN GENERAL: JURISDICTION
OF THE COURTS AND Res Judicata
9. Courts to try all civil
suits unless barred.—The Courts shall (subject to the provisions herein contained)
have jurisdiction to try all suits of a civil nature excepting suits of which
their cognizance is either expressly or impliedly barred.
1[Explanation
I].—A suit in which the right to property or to an office is contested is a
suit of a civil nature, notwithstanding that such right may depend entirely on
the decision of questions as to religious rites or ceremonies.
2[Explanation
I].—For the purposes of this section, it is immaterial whether or not any fees
are attached to the office referred to in Explanation I or whether or not such
office is attached to a particular place.]
Note 1: For instance of such
direction, see Calcutta Gazette, 1910, Pt. I, p. 814.
Note 2: Explanation
renumbered as Explanation I thereof by Act 104 of 1976, s. 5 (w.e.f. 1-2-1977).
Code of Civil Procedure Section
Code of Civil Procedure Section 7. Provincial Small Cause Courts.
8. Presidency Small Cause
Courts.—Save as provided in sections 24, 38 to 41, 75, clauses (a), (b) and
(c), 76,1[77, 157 and 158], and by the Presidency Small Cause Courts
Act, 1882 (15 of 1882), the provisions in the body of this Code shall not
extend to any suit or proceeding in any Court of Small Causes established in
the towns of Calcutta, Madras and Bombay : 2[Provided that—
(1) the High Courts of
Judicature at Fort William, Madras and Bombay, as the case may be, may from
time to time, by notification in the Official Gazette, direct3 that any such
provisions not inconsistent with the express provisions of the Presidency Small
Cause Courts Act, 1882 (15 of 1882), and with such modifications and adaptations
as may be specified in the notification, shall extend to suits or proceedings
or any class of suits or proceedings in such Court.
(2) All rules heretofore
made by any of the said High Courts under section 9 of the Presidency Small
Cause Courts Act, 1882 (15 of 1882) shall be deemed to have been validly made.]
Note 1: Subs. by Act 104 of
1976, s. 4, for “77 and 155 to 158” (w.e.f. 1-2-1977).
Note 2: Added by Act 1 of
1914, s. 2.
Code of Civil Procedure Section
