Res Sub-judice Under The Civil Procedure Code, 1908 3i6q6h

Introduction Section 10 and 11 of the Civil Procedure Code,1908 deals with the doctrine of res sub-judice and res judicata. Res sub- judice means any case under trial in the court and res judicata means any matter which is already settled by the court. The broad discussion of res sub-judice and res judicata are as follows:-

Res Sub-judice Under The Civil Procedure Code, 1908. Understanding The Term– The word “Res” came from a Latin word which means Subject or fact, and “Sub-judice” means under consideration or under trial. So, Res Sub-judice means any fact under trial in the court. The concept of res sub-judice is applicable for only the cases under trial in the court. There is nothing mentioned in the Civil Procedure Code,1908 specifically in respect of Res subjudice. But in section 10 of the Code there is a concept named stay of suits which is nothing but the English term of the concept “res sub-judice”.

Res Sub-judice According to Jurists :- According to section 10 of the Civil Procedure Code,1908,” 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, litigating under the same title where such suit is pending in the same or any other Court in Bangladesh or in any Court beyond the limits of Bangladesh established or continued by the Government and having like jurisdiction, or before the Supreme Court”. Generally there must not be two suites under trial at the same time between the same parties on same subject matter for same cause of action in two deferent compatible courts, the court must in this situation stay the later filed suit. This above stated procedure is called Res sub-judice.

Some Reported Case References:-The following cases are related with the doctrine of res sub-judice Indian Bank v. Maharastra state cooperative Banking-The case states that, if the parties and subject matter is same in a pre-filed under trial suit and a later filed under trial suit and if the court where the first suit was filed has the jurisdiction of the suit then the court will dismiss the later filed suit. Radhika v. Konnel – In this case first suit was filed for divorce and the custody of minor child and second suit was filed for custody of child, when the court stayed the second suit. [ AIR 1993 Mad 90 ] Eastern Bank ltd v. Fabrican Foundry Engineering Works – In this case the cause of action was same money in both cases that’s why the later filed suit was stayed. [ MLR 2003, (HCD) 270-272 ] M,S, Co-operative Marketing v. Indian Bank – According to this case it is mandatory to find out if the subject matter of two suits are technically same or not and if the pre filed suit settled by the court or not. If it was settled then it will be res judicata not res sub-judice. [ AIR 1997 (Bom) 187 ]

Exception to The General Rule:-There is an exception of section 10, if the first suit was filed in a foreign court then the similarity of the suit will not matter, and section 10 will not prevent any court of Bangladesh to justify the later filed suit.

Essential Ingredients to be Fulfilled Regarding Res Sub-judice:- According to section 10 of the Code of Civil Procedure,1908 to aply the doctrine of res sub-judice to stay a suit the following conditions must be fulfilled – (1) There must be two suits to apply the doctrine of res sub-judice and one of them must be pre filed and another one must be later filed suit. [ Anna malay v. Tharand ] (2) The parties of every suit or their representatives must be same. [ Bal Ram Singh v. Taj Ram Singh ] (3) The subject matter of the suits must be same directly or indirectly. [ Indian Bank v. Maharastra State Cooperative Banking ] (4) The cause of action to the suit must be same in both cases. [ Abdul Latif v. Abdul Haque ] (5) Both suits must be under trial, it means none of the suits had gone to the final judgment. [ Indian Bank v. Maharastra State corporation ] (6) The court where the first suit was filed must have the jurisdiction to have it. [ Minusar v. Hema ] (7) The court where the first suit was filed must have the jurisdiction to give the remedy of the suit. [ Laksmi Dashi v. Ram Dash ] (8) The court where the suits will be filed must be in control of the Government of Bangladesh.

Objectives of Res Sub-judice – It’s against naturel justice to let multiple cases with same parties, subject matter and same cause of action to run at the same time in different compatible Courts. Cause if there are multiple parallel cases with same subject matter and cause of action then there will be dispute among judgments. The main object of res sub-judice is to prevent this kind of disputes. Another object of res sub-judice is to reduce the excess of the sutes.

Relation Between Res Sub-judice and Lispendens :- Generally Res sub-judice means, there must not be two suites under trial at the same time between the same parties on

same subject matter for same cause of action in two deferent compatible courts, the court must in this situation stay the later filed suit. This above stated procedure is called Res sub-judice. And, Lis pendens means, during the pendency in any court in Bangladesh of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such as it may impose according to section 52 of the Transfer of Property Act,1882. Here we can see that Lis pendens prevent the sail of Immovable property when the suit is under trial and, Res Sub-judice prevents run multiple suits at the same time with same parties , subject matter and same cause of action in different compatible courts.

Stay order under Res Sub-judice - Section 151 of the Civil procedure Code,1908 deals with the Stay order. By the power given by section 151 if the court things fit that running the suit is an abuse of the court then the Court can stay the suit. In such situation the cout will show following grounds – i. ii.

The plaintiff will not be harmed by the stay of suit, and The defendant will be harmed if the suit was not stayed.

Res Judicata Under The Ciil Procedure Code, 1908.

Understanding The Term– In Roman law there was a term named “Res judicata pro veritate occipitur “ It means a judicial decision must be accepted as correct. The doctrine of Res Judicata is the shrunk version of the Roman term where Res means “Subject” and Judicata means “settled by the Court” So generally Res Judicata means any subject which have been settled by the court. [C. K. Taqoani, page-53]

An Attempt to Illustrate The Term Res Judicata:- Section 11 of the Civil Procedure Code,1908 deals with res judicata where there is a prevention of filing multiple suits among the same parties on same subject matter and same cause of action for settlement. The main concept of res judicata is to prevent the abuse of the court by filing multiple suits one by one among the same parties on same subject matter. If this rule was not made then one would have file a settled suit again and again by which the common procedure of the court could have been interfered. For this reason the doctrine of res judicata is so important. When a Court having the jurisdiction make the final judgment of a suit, the same suit must not be filed in any court further if filed the Court will not accept the suit. Example:- Suppose “A” filed a suit against “B” for a breach of contractto recover damages and the Court made the judgment in favor of “B”. Now if “A” Files another suit against “B” for the same breach of contract to recover the damages then the court will dismiss this suit because both suits have the same parties, subject matter and cause of action and the first suit was settled by the court. And the doctrine of res judicata prevents from filing this kind of suits.

Objectives of Res Judicata: -The main reason and basis of res judicata are as follows – 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)

Essential Ingredients to be Fulfilled Regarding Res Judicata:- To apply the doctrine of res judicata the following conditions must be fulfilled – 1. The matter in issue in the subsequent suit must be directly in the issue in the previous suit. [Rajlaksmi Dashi v. Benamali Sen, AIR 1953 SC 33 (40)] 2. There must be two suits, one previously instituted and the other subsequently instituted. [Mokarram v. Abdus Samad, 1981 BLD (AD) 121] 3. Both the suits must be between the same parties or their representatives. 4. Both suits must have the same cause of action. 5. The court in which the previous suit is instituted must have jurisdiction to grant the relief claimed in the subsequent suit. [Rajlaksmi Dashi v. Benamali Sen, AIR 1953 SC 33 (40)] 6. The Court which made the judgment of the first suit must be in control of the Government of Bangladesh. 7. The Court must here the both parties and the judgment must be announced in the present of both parties. 8. Filing first is not the fact in case of res judicata but the fact is which court made the judgment first. The court which made the judgment first will be considered as the first court. 9. The term Res Judicata is only applicable for a fresh suit, appeal, review or revision will not be affected by res judicata. 10. If the first court had not gave the remedy as wanted the second court will think that the first court deny the remedy and the doctrine of res judicata will still be applicable. [50 DLR 243] 11. Res Judicata will not be affected in case of Expartee.

Some Reported Case References:- The following cases are related with the concept of res judicata – Habibullah v. S.A. Mujtaba – If the subject matter of the second suit is directly or relevant to the subject matter of the first suit then the second suit will be dismissed.

Corporation of Mohisur v. Public Interest Litigation – In this case the people of a corporation filed a writ in the High Court against the corporation for increasing taxes, But the High Court dismiss the application and then some other people of that corporation filed a normal suit against the corporation in the district court with the same subject matter. Whereas the High Court did not gave any judgment therefore this suit will not be affected by the doctrine of res judicata. [AIR 1997 (Kant)] Hossain v. Jadob Ali – According to this case,” applying for revision will not be considered as a new suit. So, this kind of cases will not be affected by the doctrine of res judicata. [AIR 1993 (AP) 323] Test Bank of India v. Moddhapradesh Iron and Steel – According to this case, however the application of crop was denied once but even though there will be no prevention to apply it again. In such case section 11 will be silent. [AIR 1998 (MP)]

Classification of Res Judicata:- Naturally Res Judicata can be classified into following two types – i) ii)

Direct Res Judicata, and Indirect Res Judicata.

Interpreting The Kinds:Direct Res Judicata – When the subject matter of the both suits is directly the same is called direct res judicata. Indirect Res Judicata- When the subject matter of the second suit was not directly the subject matter of the first suit but it was indirectly relevant to the subject matter of the first suit then it will be called as indirect res judicata. Example of Indirect Res Judicata – The concept of Indirect res judicata is given in the explanation number 4 of section 11 of the Civil Procedure Code,1908. For example- Suppose “A” filed a suit against “B” for the ownership of a land. His claim was that he got the land from “C” by inheritance. The Court settled the case against “A”. Now “A” files another suit against “B” claiming the ownership of the same land by adverse possession. Now the second suit filed by “A” is an example of indirect res judicata. Because “A” could claim both inheritance and

possession of the land in the first suit. This Concept of Indirect res judicata is also known as “Constructive Res Judicata”.

Res Judicata between Co-Plaintiff and Co-Defendant:- The Doctrine of res judicata is also applicable for co-plaintiff and co-defendant. Generally there may be two or more coplaintiffs and co-defendants in one suit and there may be some common direct subject matters. But some times to prove the common subject matter some other matters could be needed to be proved. Those proved matters between co-plaintiff and co-defendant will be considered as res judicata in any next suit between the same parties between whom the matter was solved. To apply the doctrine of res judicata on co-defendant the following conditions must be fulfilled – a) There must be some dispute of interest between the co-defendants. b) The dispute must be needed to be settled to give remedy to the plaintiff. c) The dispute between the co-defendants must have been settled by the court. [Iftekhar v. Meherban, AIR 1974 AC 749] d) The Co-defendant was a mandatory party in the suit. [Iftekhar v. Meherban, AIR 1974 AC 749]

Res Judicata in Case of Partial Decree:- The doctrine of res judicata will still be applicable if though the suit was settled partially by the court. Even if there was a chance to appeal and the parties failed to do that then they will not get the chance to refile the same suit.

Relation Between Res Judicata and Sole decree:- Sometimes the parties of the suit compromise and they decide how the suit will be settled and apply it to the court. The court gives its decree according to that application. Now if the parties again come to the court with the same suit the doctrine of res judicata will be applied, because though the settlement of the suit was done by the parties but the final judgment was given by the court and for this the judgment will be considered as the courts final decision.

Res Judicata on the Facts Agreed by Both Parties: - There may be some facts that was not the decision of the court but the both parties were agreed to that fact in front of the court. In such case there are several comments, some says in such case res judicata will be applied and some says in such case res judicata will not be applied. But the main decision is that in such cases the doctrine of res judicata will not be applicable.

Differences Between Res Judicata and Estoppel:- The concept of res judicata and estoppel is far way different. The doctrine of res judicata prevent one to filing same suit more than once and the doctrine of estoppel prevent one to change his comments given in front of the court. And the source of the concepts are also different the concept of res sub judice came from the Civil Procedure Code,1908 and the concept of estoppel came from the Evidence Avt,1872.

Discrepancies Between Res Sub-judice and Res Judicata:following differences between Res Sub-judice and Res Judicata – Base

Res Sub-judice

Res Judicata

There are

According to section 10 of the Civil According to section 11 of the Civil Procedure Code,1908,” No Court Procedure Code,1908 “When a Court shall proceed with the trial of any suit having the jurisdiction make the final in which the matter in issue is also judgment of a suit, the same suit must directly and substantially in issue in a not be filed in any court further if filed previously instituted suit between the the Court will not accept the suit”. same parties, litigating under the same Definition

title where such suit is pending in the same

or

any

other

Court

in

Bangladesh or in any Court beyond the limits of Bangladesh established or continued by the Government and having like jurisdiction, or before the Supreme Court”. Section 10 of the of the Civil Section 11 of the Civil Procedure Section

Procedure Code,1908 deals with the Code,1908 deals with the doctrine of res doctrine of res sub-judice. judicata. The doctrine of res sub-judice is only The doctrine of res judicata is applicable

Applicabilit

applicable on the cases which are on the cases of which the court has

y Stay

under trial. already given the final judgment. The doctrine of res sub-judice stays The doctrine of res judicata dismisses

And

the suit which was filed later.

Dismiss Prohibition

the suit which judgment was not given

yet. Res sub-judice prohibits the running Res judicata prohibits to file the same of two parallel same cases.

case more then once.

Concluding Remarks:- After all above discussion we can see that the doctrine of res sub-judice prevents the courts to run multiple parallel cases with same parties, subject matter and cause of action in multiple competent courts. By this rule stated in section 10 of the Civil Procedure Code,1908 no one can file a suit in a court which is already under trial in another court. By this rule the multiplicity of suites can be prevented and the courts can give remedy faster. And this remedy can only be given by following the conditions given in section 10.

And the doctrine of res judicata is based on three principles, firstly, “No man should be punished twice for the same cause”. Secondly, “It is in the interest of the state that there should be an end to litigation”. And thirdly, “A judicial decision must be accepted as correct”. There would not be any ending of cases if there was no rule as res judicata. Therefore we can say that the doctrine of res sub-judice and res judicata is very much important keep the peace of the society.

Bibliography

C.K. Takwani, Civil Procedure, 7th Edition, 2013 Dr.T.P.Tripathi, The Code of Civil Procedure, 2nd Edition, 2008

M.PJain, The Code of Civil Procedure, 2007, 3rd Edition Sir D.F. Mulla, The Code Of Civil Procedure, 7th Edition, Volume 1 B.M.Prasad, The Code Of Civil Procedure, 18th Edition, 2011, Volume 1 Basu, The Code of Civil Procedure, 10th Edition, 2007, Volume 1

Z. H. SIKDER UNIVERSITY OF SCIENCE & TECHNOLOGY Department of Law An Assignment on

Res Sub-judice & Res Judicata Under The Civil Procedure Code, 1908. Submitted toMohammad Moniruzzaman Assistant Professor, Dept. of Law

Submitted byImran khan ID- 140314007 8nd Batch

Date of Submission:-