Res Sub judice and Res Judicata

1. Introduction

Section 10 of the code of civil procedure 1908 deals with the doctrine of res sub-judice and section
11 deals with the doctrine of res judicata. Section 10 prevent the court of concurrent jurisdiction
from thee simultaneously adjudicating to parallel litigations in respect of the same subject matter.
The principle on which this provision is based is that the parties in litigation should not be harassed
by having two or more simultaneous proceedings over the subject matte and the possibility of
conflicting decision should be avoided. On the other hand, where a suit relating to right, title and
possession of a land was dismissed, subsequent suit between the same parties relating to right, title
and possession of the same land is barred by res judicata. section 11 is intended to same litigant
from being vexed twice and is based on the public policy that there should be finally in litigation.

2. Meaning and Definition of res sub-judice

Subjudice 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 failed between the same parties on the same subject
Smatter, the competent court has the power to stay proceedings. The doctrine of res sub-judice
means stay of suit. The stay must be of the later suit and not of the earlier suit between same
parties. The word suit includes an appeal, but it does not include an application for leave to appeal.

3. Condition for Stay of Suit

In order to attract the application of this section it is necessary that the following conditions must
be fulfilled.

a. Two Suit
b. Matter in issue
c. Same parties
d. Litigating under the same title

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 e. Competent Court
f. Jurisdiction

Two suit

There must be two suit, one previously instituted and the other subsequently instituted.

Matter in issue

The matter in issue in the subsequent suit is directly and substantially in issue in the previous suit.
It does not mean any matter in issue in the suit but has reference to the entire subject controversy.

Case law

In Mahaganpatihy v. Natesa, it was held that this section will be applicable if the issue involved
in the latter suit are covered in the earlier suit, but not vice versa.

Same parties

The parties or their representatives in the subsequent suit are parties in the previous suit where the
parties in the two suit are not the same, this section will have no application in case Asker Ali vs.
Shamsul Alam.

1. Such parties must be litigating under the same title in both the suit.

Competent Court

The court in which the previous suit has been filed is competent to grant the relief prayeol for the
subsequent suit.

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Case reference

In Minocher v. Hema, it was held that, where the court in the earlier suit does not have jurisdiction
to grant relief claimed the subsequent suit even though on the same subject matter and between
the same parties cannot be stayed.

The previously instituted suit is pending in the same court or any other court in Bangladesh or any
court outside Bangladesh established by the government or before the Supreme Court. If these
essential conditions are fulfilled, the subsequent suit must be stayed by the Court where it is
pending. It must be remembered that the institution of the subsequent suit is not barred but its trial
only.

4. Inherent Power

Where a case is not covered by the provisions of section 10, stay can be granted for the end of the
justice. Apart from section 10, a suit can be stayed under the inherent power in cases where section
10 does not apply, if the interest of justice so requires. But in granting stay under its inherent
power, the Court cannot overlook the well settled principles of la governing the stay of suit and
there should be identity of the subject matter of the controversy between the parties in two suits.
Where two suits filed between the same parties involving common question arising between them
and the claim in the latter suit was the defense in the earlier suit, the court has inherent power to
consolidate the two suits and to direct analogous hearing of the same in the interest of justice.

In Arifa v. Nagvi and Iftekhar Afzal v. Pubali Bank, it held that for the end of justice, even a
previously instituted suit can be stayed under section 151 though under section 10 only a
subsequent suit can be stayed.

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 Res judica

5. Meaning of Res judicata

Res judicata is a Latin expression or term that means matter once adjudicated, cannot be re-
adjudicated. The maxim that no one shall be vexed twice presupposes that the issue has been fairly
and finally decided, in a former suit. Once an issue has been finally decided, it cannot be re-agitated
between the same parties. Where an act or omission constitutes an offence under two or more
enactments, then the offender shall be liable to be prosecuted and punished under either or any of
those enactments, but shall not be liable to be punished twice for the same offence. (Section 26 of
the General Clauses Act, 1897)

In Badal v. Gurdinomal, it held that when during the pendency of an appeal, a final judgement on
the same is pronounced by a competent court, it operates as res judicata.

6. History of the Doctrine1

The doctrine of res judicata, in its essence, has an ancient history, although it is difficult to say
definitively whether or not the doctrine as it stands now was formulated before 1776. Understood
in the distant past by both Hindu lawyers and Muslim jurists, it was known to ancient Hindu Law
as Purva Nyaya" or former judgement". Under Roman Law, it was recognized by the doctrine
of exception res judicata which also meant previous judgment". Under English law, the principle
is embodied in the maxim interest reipublicae ut sit finis litium, which means the interest of the
State lies in that there should be a limitation to law suits. Now, all the countries of the
Commonwealth and those of the European Continent accept that once a matter has been brought
to trial once, it should not be tried again except by way of appeal.
In order for the bar of res judicata to be applicable, it must be shown that the cause of action in
both the suits is the same as well as that the plaintiff had an opportunity to get the relief that is now
being claimed in the subsequent suit, in the former proceeding itself. Res judicata bars the opening
of final, un-appealed judgments on the merits, even where the judgment may have been wrong or
based on a legal principal subsequently overruled.

7. Rationale Behind the Doctrine

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The essence of the doctrine of res judicata is the judicially formulated proposition that a matter
which has been adjudicated in a prior action cannot be litigated a second time. The policies which
res judicata is designed to serve include the public interest in decreasing litigation, protection of
the individual from the harassment of having to litigate the same cause of action or issue against
the same adversary or his privy more than once, and facilitation of reliance on judgments.
Essentially, the doctrine of res judicata in general is based on the three following maxims-
nemo debet lis vexari pro una et eadem casua meaning that no man should be vexed twice for the
same cause,
interest republicae ut sit finis litium or that it is in the interest of the State that there should be an
end to litigation, and
res judicata pro veritate occipitur meaning that a judicial decision must be accepted as correct.
The principle itself is founded upon the principles of justice equity and good conscience, and
applies to various civil suits, criminal proceedings, writs, execution proceedings etc. The
underlying purpose for this judicially created doctrine was to instill finality into litigation and to
provide for sound economic use of judicial resources.

8. Applicability of Res Judicata

Res judicata is a principle of universal application. It applies to civil suits, criminal proceedings,
writ petitions, execution suits etc. This doctrine is however, neither applicable to summary
dismissal nor to compromise and consent decrees. The doctrine of res judicata is not confined to
the limits prescribed in Section 11, Civil Procedure Code. The underlying principle of that doctrine
is that there should be finality in litigation and that a person should not be vexed twice over in
respect of the same matter. The essential condition for the applicability is that the subsequent suit
or proceeding is founded on the same cause of action on which the former suit was founded. It is
a debatable point whether the doctrine of res judicata should be interpreted liberally or strictly.
However, keeping in view its basis and objective, which is based on public policy, it can be
reasonably asserted that the doctrine of res judicata should be interpreted liberally.

9. Essentials of Res Judicata

Res judicata has universal application. In jurisdictions world over the essentials of res judicata are
that: once a court with competent personal and subject matter jurisdiction over the parties renders
a final judgment, that judgment should conclude the matter between the parties. These
principles provide the foundation for the doctrine of res judicata. As a general rule, in order for the
doctrine of res judicata to apply to future litigation, four elements must be present. First, the court
must have competent jurisdiction over both the subject matter in dispute and the parties involved
in the litigation. Second, the judgment must have been on the merits." If the plaintiff received
judgment in her favour, there is no question that the judgment was on the merits. If the defendant
received judgment in her favour, then the judgment may or may not be upon the merits." As a
general rule, when a plaintiff's claim is dismissed based on procedure, the judgment is not on the
merits. However, if a court's ruling in favour of a defendant was not based on procedural grounds,
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then the judgment will generally be on the merits. Third, the second case must be based on the
same cause of action as the first action. Finally, the parties in the second action must have been
involved in the initial litigation. Moreover, when the doctrine of res judicata applies to a second
suit involving the same parties and the same cause of action, the first judgment is conclusive not
only on the matters that were actually litigated, but on all matters which could have been
litigated." Res judicata bars the opening of final, unappalled judgments on the merits, even where
the judgment may have been wrong or based on a legal principal subsequently overruled. The
underlying purpose for this judicially created doctrine was to instill finality into litigation and to
provide for sound economic use of judicial resources.
Under the Code of Civil Procedure, 1908 the conditions for res judicata to apply are:
The matter which is directly and substantially in issue in the subsequent suit or issue must be the
same matter which was directly and substantially in issue, either actually or constructively in the
former suit. This applies to execution proceedings as well.
It is necessary that the parties to the subsequent suit be the same parties as were in the former suit,
or are parties who are claiming under the parties to the former suit.
The parties should have been litigating under the same title, i.e. in the same capacity as the former
suit.
In order for the bar of res judicata to apply to the subsequent suit, or the issues therein, the same
(matters directly and substantially in issue) should have been heard and decided by a Court in the
former suit. It is important to note that the Court which decided the former suit should have been
competent to decide such former suit, and had done so on merits.
Earlier, it was required that the Court which decided the former suit must be competent to decide
the subsequent suit as well. However, now, with the insertion of Explanation VIII into the section,
such a requirement has been done away with.

10. Matter Directly and Substantially in Issue

The words in section 11 use the phrase matter directly and substantially in issue". Thus, for res
judicata to operate the former suit and the subsequent suit should have matter which was directly
and substantially in issue".
The test to decide whether a matter was directly and substantially in issue in the earlier proceedings
is to see if it was necessary for that issue to be decided in order for an adjudication upon the
principal issue. However, every single issue framed is not a matter which is directly and
substantially in issue. Thus, is becomes imperative to examine the plaint and the written statement
to arrive at a conclusion as to which issues were directly and substantially in issue and which ones
were merely incidentally or collaterally in issue. Another manner in which such may be tested is
by checking if decision on such an issue would materially affect the decision of the suit.
Where there are findings on several issues or where the court rests its decision on more than one
point, the findings on all the issues or points will be res judicata. However, no objective test can
be laid down to definitively determine which matters are directly and substantially in issue in every
case and it depends on the facts and circumstances of each case.

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11. Former Suit
The most important condition that needs to be satisfied is that the matter in issue in the subsequent
suit was in issue, directly and substantially, in a former suit. The general and ordinary meaning of
suit" is a proceeding which is commenced by presentation of a plaint. Ordinarily, and in more
specific terms, a suit" is a civil proceeding that is instituted by the presentation of a plaint. The
expression former suit" denotes a suit that has been decided earlier in time than the suit in
question, i.e. the subsequent suit, regardless of whether such a suit which was decided earlier was
instituted subsequently to the suit in question or not. If two suits are instituted one after the other,
and both relate to the same question in controversy, the bar of res judicata will apply even in cases
where the subsequently instituted suit is decided first.

12. Suit Between Same Parties

A party is a person whose name appears on the record at the time of the decision. A party may
be the plaintiff or defendant. The condition recognizes the general principle of law that judgments
and decrees bind the parties and privies. Once the matter is heard and decided in one suit, the same
cannot be agitated again by the same parties, their legal representatives or successors. Res judicata
binds in a subsequent suit, the same parties to the former suit, the legal representatives of such
parties or anyone claiming under such parties. Further, even if a subsequent suit is brought about
in a different form or under a different guise, but seeking to agitate the same matter as was decided
in the former suit, it will be barred by res judicata. E.g. A sues B for breach of contract. As suit is
dismissed. A cannot file a fresh suit against B for claiming damages.
Res judicata also operates between co-plaintiffs and co-defendants. In case of co-plaintiffs, it must
be necessary that there is a conflict between the plaintiffs which must be resolved in order to give
relief to the defendant, and such a matter is decided by the Court and the parties were necessary or
proper parties in the former suit. If it is so decided, the decision will operate as res judicata between
the co-plaintiffs in a subsequent suit.
Iftikhar Ahmed vs. Syed Meherban Ali
There was a dispute as to title to some land. The appellant sought to challenge the decision of the
High Court, which was to the effect that the respondents also had some title to the land in question.
Initially, the dispute between the parties was referred to an arbitrator by the Civil Judge. The
holding of the arbitrator was that that the respondents had no title and sole title belonged to the
appellant. The decision of the arbitrator was based upon a judgment of the High Court in an earlier
judgement, wherein both the present appellant and respondents were co-plaintiffs in a suit against
another person, again in respect of title to the land. Such a decision of the High Court was
considered by the arbitrator to operate as res judicata, and hence held in favour of the appellants.
The respondents then filed objections against the decision of the arbitrator with the Civil Judge,
Meerut, and the Civil Judge said that the decision of the High Court did not operate as res judicata
and since the decision of the arbitrator, dependent as it was on the decision of the High Court as
res judicata, was manifestly wrong and vitiated by error of law. An order for fresh arbitration was
passed.

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The appellants then filed objections before the Civil Judge who did not find anything manifestly
wrong on the face of the record and confirmed the decision of the arbitrator. The appellants
preferred an appeal to the District Court, which allowed it, opining that the decision of the High
Court did constitute res judicata and hence ordered a fresh arbitration. The respondents then filed
a revision petition in the High Court, and the High Court confirmed the decision of the Civil Judge,
reversing the decision of the District Court.
The matter then came up before the Supreme Court a Special Leave Petition. The Supreme Court
considered the matter, and considered the question of whether the respondents, who had had failed
previously to establish title to the properties, could agitate the matter again. In doing so, the Court
also explained the concept of res judicata between defendants and reiterated the established rule
that in order that such a principle may be invoked, the following conditions must be met:
1. there was a conflict of interest between co-defendants;
2. that it was necessary to decide the conflict in order to give the relief which the plaintiff
claimed in the suit;
3. and that the court actually decided the question.
The Court then went on to say that if all these conditions were satisfied mutatis mutandis, there
was no reason why the previous decision should not operate as res judicata between co-plaintiffs
as well. On this reasoning, the Court agreed with the holding of the earlier arbitrator and contention
of the appellants that the earlier decision of the High Court did operate as res judicata, since all the
three conditions had been met mutatis mutandis between the co-plaintiffs in the earlier case, and
accordingly allowed the appeal.
It is also important to mention that the parties in the subsequent suit, though they may be the same,
must additionally be litigating in the same capacity as they were in the former suit.

13. Matter to Be Decided by A Competent Court

It is essentially for res judicata to operate against the subsequent, that the former suit should
have been decided by a court competent to try" the subsequent suit. The expression
competent to try" means competent to try the subsequent suit if brought at the time the first
suit was brought". Before Explanation VIII was added to S. 11, the position was that the Court
which decided the former suit must have been competent to decide the subsequent suit as well,
and if it was not, then res judicata would not apply. However, with the insertion of Explanation
VIII, even if the Court which decided the former suit is not competent to decide the subsequent
suit, res judicata will still be applicable provided that the former suit was decided by a
competent Court.
The current position of law is that even if the Court that decided the former suit is not
competent to decide the subsequent one, and yet there are some common issues which arise in
the subsequent suit, which the Court (being competent to do so), decided in the former suit,
the doctrine of res judicata will operate against such issues, and the Court deciding the
subsequent suit will not decide upon these issues.

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This may arise in the case of pecuniary jurisdiction, the Court which decided the first suit
cannot decide the second one, but the second suit does have certain issues which were decided
in the former suit (and competently so). In such a case, the second court shall not decide those
issues that were decided by the first court in the former suit. In such a case, res judicata will
apply not to the subsequent suit, but to those issues therein which were decided in the former
suit.

14. The Matter Should Be Heard and Finally Decided

For res judicata to be applied, it is necessary that that the matter should have been heard and finally
decided in the former suit, and whether such decision be right or wrong is of consequence. If an
opinion is expressed on issues not material to the decision, then res judicata will not apply. The
matters which are directly and substantially in issue in the subsequent suit must have been heard
by the Court in the former suit and a final decision on the same must have been delivered. In such
cases, res judicata will apply to the subsequent suit. Such a provision also applies to former suits
that were disposed of exparte, provided that notifications were suitably issued to the party in
question. But if a suit is dismissed on a technical ground, such a non-joinder of necessary party, it
would not operate as res judicata.

15. Conditions of Res judicata

a. Identity of matter in issue
b. Identity of parties
c. Same title (litigating under same title)
d. Concurrence of jurisdiction
e. Heard and finally decided
f. Two suit
g. Competent court
h. Hearing

Identity of res judicata

The matter directly and substantially in issue in the subsequent suit must have been directly and
substantially in issue in the former suit either actually or constructively.

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Case reference

In Rochandra v. Vithu Hira Mahar, it was held that, the principle of res judicata comes into play
when by judgement and order a decision of a particular issue is implicit in it, that is, it must be
deemed to have been necessarily decided by implication even than the principle of res judicata on
that issue is directly applicable.

Identity of parties

The former suit must have been between the same parties or between parties under they or any of
them claim where a decision in the previous proceeding was not inter parties, res judicata cannot
apply.

In Sarwar v. Shakhawat case, where a person was not a party in the previous suit, the question of
res judicata as against him does not arise.

Same title (litigating under same title)

The parties in the subsequent suit must have litigated under the same title as in the former suit.
The word litigating under same title mean in the same right or capacity and do not refer to the
identity of the ground of action according to Ali Moidin v. Kombi case.

Concurrence of jurisdiction

The court which decided the former suit must have been competent to try the subsequent suit or
the suit in which the issue has been subsequently raised. In Gokul v. Pudmanund, the privy council
observed, A decree in a previous suit cannot operate as res judicata in a subsequent suit unless the
judge by whom it was made had jurisdiction to try and decide, not only the particular matter in
issue but also the subsequent suit itself in which the issue is raised.

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Heard and finally decided

Before a decision in the former suit may constituted res judicata, it must have been heard and
finally decided. In Refazuddin v. Abdul Razzaque, a matter which though in issue was not heard
and finally decided either actually or constructively, cannot be res judicata for the purpose of
subsequent proceedings.

Two Suit

There must present two suit. One is finally decided and other is pending.

Competent Court

The finally decided court must be having jurisdiction to grant the relief and the finally decided
court must under the jurisdiction of Bangladesh.

Hearing

All the parties must be heard in the first deciding court.

16. Object of res judicata

The doctrine of res judicata is based on three maxims.

a. nemo debet bis rexari pro una et eadem causa. (no man should be vexed 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.)

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 c. res judicta pro veritate accipitur (a judicial decision must be accepted as correct.)

In Sheoparsan Singh v. Ramnandan Singh (1915-16) it observed that, the rule of res judicata, while
founded on account of precedent in dictated by a wisdom is for all times.

The main object of res judicata are to prevent-

I. Injustice to the parties of a decided suit.

II. Unnecessary waste of court resources
III. Multiplicity of suit.
IV. Recovery of damages from the defendant twice for the same injury.

Shamsher vs. Bangladesh

17. Difference between res judicata and res subjudice

1. Res subjudice relates to matter pending judicial enquiry or trial sub judice.

Whereas, res judicata relates to a matter already adjudicated or matter in which decision is already
done.

2. Res subjudice bars the trial of a suit in which the matter directly and substantially in issue
is pending adjudication in a previous instituted suit.

But, res judicata, bars the trial of a suit or on issue in which the matter directly and substantially
in issue has already been adjudicated upon a previous suit.

18. Res judicata Between Codefendant

Rules of res judicata shall also be applicable between codefendant.

In Sachindra vs. Hridoy, an issue as between the defendant in a suit may aerate as res judicata.

The rule of res judicata applies in a case of co-defendant, if the following conditions are satisfied-
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 a. There must be conflict of interest between defendant and concerned.
b. It must be necessary to decide the conflict in order to give the relief which plaintiff claims.
c. The co-defendants must be necessary or proper parties to the suit.
d. The question or disputes between the co-defendants must have been finally decided inter
see between them.

19. Res judicata between co-plaintiff

In case of Bachint v. Karaim, rule of res judicata shall be applicable between co-plaintiff.

a. There must be conflict of interest between co-plaintiff.

b. It must be necessary to decided such conflict, in order to give relief to the plaintiff.
c. The question between the plaintiffs to be finally decided.

20. Res judicata and estoppel

Res judicata is considered to be a branch of the law of estoppel and is treated as estoppel by record.
Res judicata can be distinguished from estoppel on the following grounds-

a. Res judicata is estoppel by record. This rule is based on public policy that litigation should
end. Estoppel is part of law of evidence, where a person cannot change his stance once
taken.
b. Res judicata prevent some one from saying same thing in different litigation. Estoppel stops
him from saying different thing at different times, either in the same, suit or different suit.
c. Res judicata bars the trial itself. Estoppel only stops a certain piece of evidence from being
taken on record when the trial continues.
d. Res judicata is reciprocal and binds the parties, while Estoppel binds the party who made
the previous statement or showed the previous conditions.
e. Res judicata ousts the jurisdiction the court, Estoppel stops the mouth of party.

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 f. The doctrine of res judicata results from a decision of the court, Estoppel results from the
acts of the parties themselves.
g. Res judicata presumes conclusively the truth of the former decision, Estoppel prevent
someone from asserting a new truth.

21. Res Judicata And Writ Petitions

It was debatable whether the term suit would include writs and whether the principle of res
judicata would apply to writ petitions.

Daryao vs. State Of U.P

Six writ petitions were presented before the Supreme Court entertaining this question. One of
the writ petitions was examined in detail by the court.
Facts - The relevant facts are that the petitioners were tenants in the lands of which the
respondents were proprietors. The petitioners had to leave the lands for some period owing to
communal disturbances. When the petitioners returned, they found that the respondents were
in unlawful possession of the land. The petitioners then filed ejectment suits under S. 180 of
the U.P. Tenancy Act, 1939, and obtained a decree in their favour, which was confirmed in
appeal, and thereby obtained possession of the said lands through Court.
The respondents preferred a second appeal before the Board of Revenue under S. 267 of the
Act of 1939, wherein the Board allowed the appeal and held that the respondents were entitled
to the possession of the lands in question.
High Court: The petitioners filed a writ petition under A. 226 before the High Court. However,
before the petition was filed, the Allahabad High Court had interpreted a particular section of
the U.P. Land Reforms Act, and such an interpretation was against the interests of the
petitioners. Hence, in consequence of such interpretation, the petitioners could not press their
petition, and it was consequently being dismissed. The same section of the said Act was later
amended, in consequence of which the petitioners approached the Supreme Court via writ
petition under A. 32.
The question that arose for consideration was that since the grounds were same as those raised
before the Allahabad High Court, was the writ petition was hit by res judicata? The petitioners
placed reliance on the supremacy of A. 32 and it being above all other rights. They emphasized
that a fundamental right cannot be whittled down by a technical rule of the C.P.C. as the
Constitution is supreme.
The Supreme Court: The Supreme Court was not impressed with the arguments of the
petitioners. The court held that the rule of res judicata as embodied in S. 11 of the Code did
have some technical aspects, but was by and large based on high public policy that there should
be a finality to litigation, and was also based upon the notion that no person should be vexed
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twice for the same cause. Due to the doctrine being based on these considerations it couldnt
be treated as irrelevant or inadmissible even where writ petitions dealing with fundamental
rights were concerned.
The other contention of the petitioners was that High Court and Supreme Court cannot be said
to be courts of competent jurisdiction as they are different. This contention was also negated
by the court and it held that the jurisdictions of the High Court under A. 226 and the Supreme
Court under A. 32 were substantially the same, and even on that count, the application of res
judicata couldnt be barred. Based on these reasons, the Supreme Court dismissed the writ
petitions as being barred by res judicata arising from the previous decision of the High Court
and laid down the rule that
We hold that if a writ petition filed by a party under Art. 226 is considered on the merits as a
contested matter, and is dismissed the decision thus pronounced would continue to bind the
parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings
permissible under the Constitution. It would not be open to a party to ignore the said judgment
and move this Court under Art. 32 by an original petition made on the same facts and for
obtaining the same or similar orders or writs. If the petition filed in the High Court under Art.
226 is dismissed not on the merits but because of the laches of the party applying for the writ
or because it is held that the party had an alternative remedy available to it, then the dismissal
of the writ petition would not constitute a bar to a subsequent petition under Art. 32 except in
cases where and if the facts thus found by the High Court may themselves be relevant even
under Art. 32."
However, this view of the Supreme Court has been criticized by some jurists. They have argued
that the judiciary has reduced the fundamental fight in Article 32 as one subject to the principle
of res judicata and even laches, forgetting that there is no great fundamental principle than the
right guaranteed in moving the court under Article 32. Article 32 is silent as to res judicata and
limitation but judicial legislation has introduced these needless aspects into writ jurisprudence.
It is submitted that the researcher agrees with the view of the Supreme Court. There has to be
finality to litigation. Keeping in view the slow process of judicial remedy and frivolous
litigation in our society, it is rather imperative that the principle of res judicata be given as
liberal an interpretation and its scope should not be curtailed.

22. Constructive Res judicata

A matter may be directly and substantively in issue either actually or constructively. A matter is
actually in issue when it is alleged by one party and denied or admitted by the other. It is
constructively in issue when it might and ought to have been made a ground of attack or defense
in the former suit, but has not been done. As a general rule, every ground of attack or defense with
reference to title sued must be pleaded, if necessary in the alternative, for the plaintiff with not be
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allowed to make out a fresh case afterwards. The principle of constructive res judicata will be
applicable against a person who was a pro forma defendant and some allegations were made
against him in the former suit.

Sahera vs. Motaleb

From the decided cases, four rules relating to constructive res judicata emergo-

a. Other conditions of res judicata being fulfilled, where the right claimed in both the suits is
the same, the subsequent suit will be barred by res judicata, though the right in the
subsequent suit is sought to be established by a title different from that in the first suit.
In Ghansiam vs. Piarey,
The position would be the same if there is identity of title, but the property in the subsequent
proceeding is different.
1. If a matter which forms ground of attack in the subsequent suit could have been alleged as
a ground of defense in the former suit, but was omitted to be so alleged in that suit, it will
be deemed to have been directly and substantially in issue in that suit. But was omitted to
be so allegad in that suit, it will be deemed to have been directly and substantially in issue
in that suit. But a claim which might have been pleaded by way of set-off or couter-claim
to a former suit will not be barred as claiming a set-off or counter-claim is not obligatory.

Case
Amritsar National Banking vs. Fazal

3. Where the right claimed in the subsequent suit is different from that in the former suit,
and it is claimed under a different title, the subsequent suit is not barred by res judicata.
Shivaram vs. Narayan

It cannot be said of a relief, which if claimed in the first suit would have made that suit bad
for multifariousness, that it ought to have been made a ground of attack in that suit.
Kura vs. Madho

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23. Exparte Decree and Res judicata

Where the plaintiff appears and the defendant does not appear when the suit is called for hearing,
then if it is proved that the summons was duly served, the court may proceed ex parte. (Order 9,
Rule 6(1))

An ex-parte decree passed by a competent court on merits will operate as res judicata, because the
effect of ex parte decree as like by-parte decree. But the doctrine of res judicata does not apply to
a consent decree, because a consent decreea matter cannot be said to be heard and finally decided
on merits, the decision in the former suit will operate as res judicata though the suit was decree ex-
parte.

Case

Bangladesh vs. Rahimuddin

24. Conclusion

The Doctrine of Res Sub judice, the very authority of law come at stake, there will be no finality
of judgment. So, with the objective to prevent courts of concurrent jurisdiction from
simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause
of action, the same subject-matter and the same relief, this section is provided in the Code.

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25. Bibliography

1. Mahmudul Islam The Law of Civil Procedure,

2. Abdul Halim, Text Book on Civil Procedure

3. J. Mohammad Hamidul Haque, Trial of civil suit and Criminal cases, second edition,
2011

4. Hand Book On Code of Civil Procedure, Mahamud Wazed

5. C . K. Takwani, Civil Procedure, 7th edition

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