Decree, judgment, and order are three concepts that are often confused during our reading of the civil procedure code, through this article we seek to take a closer look at all three in order to gain a better understanding of the same.

Decree

A decree is defined in the Civil Procedure Code under Section 2 (2), it refers to a formal expression of an adjudication which, as far the court delivering it regards, determines in a conclusive manner, the rights of the parties with respect to any or all of the matters in the suit. The decree could be final or preliminary. It is said to be preliminary when there is a need for further proceedings to take place before the suit can be dismissed, it can be passed in situations such as administration suits, suits filed for the dissolution of partnerships, partition or separate possession, the redemption of a mortgage, etc, and if the suit has been disposed of completely then the decree is said to be a final one. A decree ought to be filed within 15 days from the date of the judgment, and the person in whose favor the decree is passed is known as the decree-holder.
A decree is deemed to include the determination of any question as provided under Section 144 of the CPC as well as the rejection of a plaint. It may not, however, include any order of dismissal due to default, or any adjudication from which there lies an appeal as an appeal from the order. Further, if a matter is not judicially determined then it cannot be deemed to be a decree, this was stated in Madan Naik V Hansubala Devi.
Before we go any further it is important to understand what adjudication means. Adjudication refers to the legal process through which a dispute is resolved, it is the formal pronouncement of a judgment or decree by the court. It also implies the hearing by a Court of certain issues based on the evidence produced before it, this is done after the issuance of a notice. It was held in the case Deep Chand V. Land Acquisition Officer that an adjudication needs to be made by an officer of the court and if this is not the case then it cannot be recognized as a decree.
As discussed earlier, decrees can be either preliminary or final, but there can also arise a situation where they are part preliminary and part final. This happens when a court takes a decision to answer 2 questions through the same decree. For example, if there is a case where the suit is for possession of immovable properties along with mesne profits, then the first part of the decree is final whereas the second part is preliminary, this is because a final decree on mesne profits can only be given once an inquiry has been conducted.
In addition to part preliminary and part final decrees, there also exists something known as a deemed decree. This is an adjudication that does not fall under the formal definition of a decree as stated under Section 2(2) but they are still deemed to be decrees due to “legal fiction”, this concept was elaborated upon in East End Dwellings C. Ltd V. Fisbury Borough Council where the court stated that the term deemed is used here to create a legal fiction so that it is able to cover a subject it might not necessarily have been able to earlier. This position was once again reiterated in CIT V. Bombay Trust Corporation Ltd, where it was also added by the court that when a person has been deemed to be something, then what it means is that even though they might not be that thing, in reality, the act still treats them as if they were. It was further stated in B. Nukaraju V. MSN Charities that deemed decrees are not to be covered under Section 2(2) and due to this they will also not attract provision 96 of the CPC, hence a regular appeal cannot lie against a deemed decree, only a miscellaneous appeal is allowed.
A decree is extremely crucial, the CPC requires that a decree be passed in all of the suits. It is such an indispensable requisite because of the fact that it is based upon the judgment as well as the fact that it follows the judgment which makes it an essential component of the final outcome of the case. It is crucial to remember that an appeal lies only against a decree and not a judgment, this means that if a decree is absent then it will be difficult to put an appeal in motion.
There are certain elements that any decree ought to have, these elements are:

• There needs to be a formal expression of the adjudication.
• There cannot lie any decree without there being a suit. The adjudication needs to be given in a suit. A suit has been defined in Hansraj Gupta v. Official Liquidators of The Dehra Dun-Missoorie Electric Tramway Co. Ltd as a civil proceeding that was instituted through the presentation of a plaint. There also exist specific provisions that allow applications to be treated as suits such as in the Hindu Marriage Act and the Indian Succession Act.
• The decision must be complete and final by the court granting it, i.e., the court will not entertain any arguments towards changing the decision, this was stated by the High Court of Calcutta in the case Narayan Chandra V. Pratirodh Sahini.
• The matter under dispute needs to be the subject of the suit. And the decree must determine the rights of the parties.
  A decree can undergo amendment through an application by the plaintiff or the respondent according to Section 152 of the CPC if there is a situation where there have been any clerical errors. It is important to remember that these amendments can only be made in cases of accidental omissions that might lead to gross negligence.

Judgment

A judgment is defined under Section 2(9) of the CPC as the statement that is given by a judge on the basis of a decree or an order. It is what the judge observes with regards to all of the issues in a given case, this is why it consists of the facts of the case, the evidence presented, and the conclusion drawn by the court. It is in essence reasoning that the judge provides with regards to why and on what grounds the decree was passed along with the arguments provided by both sides, the conclusion that the court reached, and all relevant case laws. It is a part of the final stage of a suit and helps in determining the rights as well as liabilities of the parties.
It is stated in Rule 3, Order 20 of the CPC that the judgment needs to be signed as well as dated whilst it is being declared in the open court by the judge. It also goes on to state that once it has been signed by the judge, it cannot undergo amendment unless there is a situation where a clerical error has been made, as clarified in Section 152.
Any Judgment in a court other than a court of small causes needs to have the essential elements of a case, the point of contention, the final decision arrived at by the court as well as the reasons provided for the same. This has been laid down in Rule 4(2), Order 20.
In the case of a Court of small causes, the judgment needs to contain the points on which the determination was reached as well as the decision of the court. It is essential to remember that a judgment cannot merely be a suit decreed or suit dismissed, it needs to provide proper reasoning for the same, the Supreme Court laid this down in Balraj Taneja V. Sunil Madan.
On completion of the final arguments, the court needs to give its judgment either on the same day or on another day, but this can only be done after giving proper notice to the parties. Before the code underwent amendment in 1976, there was no specified time period within which the judgment needed to be delivered, but post the amendment it was laid down that the judgment ought to be pronounced within 30 days from the hearing of the final arguments and the completion of the proceedings. This amendment needed to be brought due to cases such as Anil Rai V State of Bihar in which it took the High Court 2 years to pronounce their judgment once they had heard the final arguments. If there exist extraordinary circumstances then the deadline of 30 days can be shifted to 60 days.
Once the judgment has been pronounced, copies of the same need to be made available to the parties in order to prefer appeals once payments, as specified by the court, have been made.
A judgment can also undergo review, as stated in order 47 of the CPC, on various grounds, some of these grounds include the discovery of new evidence, an error apparent on the face of it, or any other sufficient grounds. The Supreme Court Rules state that the application needs to be filed within 30 days from when the judgment was passed, this figure goes up to 60 days in the case of the High Court. If there is a situation where a death sentence has been given, the application needs to be passed within 60 days.
Once a judgment has been made, the party that becomes liable to pay damages to the other party is known as the judgment debtor, and the party to whom the payment is made is known as the judgment creditor. If a circumstance arises where the judgment debtor is refusing to pay the judgment creditor, the latter has the right to employ extraordinary means with the assistance of the court in order to get the damages. The judgment debtor has been defined in Section 2 (10) of the CPC.

Order

Order finds its definition in Section 2 (14) of the CPC. It states that an order is a formal expression of a decision by a civil court that is not a decree. Generally, an order of a court finds its basis in objective considerations and hence it needs to contain discussions on the issue at hand and the reasoning followed by the court to pass the order.
Order and decree do have certain similarities such as the fact that both are given by courts, both are adjudications, and they both represent the formal expression of a decision.
However, they differ on the grounds such as: –

• Decrees can only be passed in suits that have commenced before the plaint was presented whereas an order might originate from a suit through the presentation of a plaint, and it may also arise through proceedings that commenced through a petition.
• A decree conclusively determines the rights of the parties involved with regards to any or all of the matters, an order might or might not give a final determination of such rights.
• While a decree can be preliminary, an order cannot.
• Barring exceptional circumstances, a suit can only have one decree, but multiple orders can be passed.
• Unless it has been expressly stated, every decree in a suit can be appealed against, however not all orders can be appealed against, that can only happen for specific orders.
• A second appeal can lie in case of an appealable decree; however, no such second appeal shall be permitted in case of an order.
  Hence, through the course of the article, we have taken a close look at decrees, orders, and judgments individually in order to gain a better understanding of each of these concepts. The differences between these concepts can now be briefly listed as shown below:

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Abstract

On 6th November 2020 the decision taken by the Hon’ble Supreme Court of India in Shruti Kaushal Bisht Vs Kaushal R Bisht, the court discussed the ambit and application of Section 21- A of Hindu Marriage Act. The section talks about the power to transfer petitions in certain cases. This section provides the guidelines as to when can a petition under this Act be transferred to a different court in the interest of justice.

Facts of the case

The parties of the petition got married in the year 19.11.2015 but eventually, disputes started arising between them. Both the parties decided to live separately from 12.01.2019. A divorce petition was filed by the husband on 7.5.2019 before the Family court in Pune Maharashtra. After receiving a notice regarding the divorce petition the wife filed for transfer of petition and later as a response to the divorce petition filed by the husband. She also filed a petition for restitution of conjugal rights before the Family Court, Saket, New Delhi. Upon receiving the said petition filed by the wife the husband also filed for transfer of petition.

Arguments of both the parties

Some of the arguments made by the counsel of the wife were as follows:
• The grounds on which the wife seeks transfer of the husband’s divorce petition from Pune to New Delhi is because she has no independent source of income and since her husband is not paying the maintenance she is entitled to transfer of petition from Family Court in Pune to Family Court in Delhi.
• This was pleaded to try both divorce petition and restitution of conjugal rights petition in one court.
• It was argued that as the wife was unemployed and she is depended on her parents.

Some of the contentions made by the husband were as follows:
• The husband opposed that the transfer petition filed by the wife, is that his own petition for divorce was prior in point of time and that therefore under Section 21-A(2)(b) of the Hindu Marriage Act, 1955, the petition filed by the wife subsequently, is liable to be transferred to Pune.
• He agreed to bear the expenses of the wife to travel from Delhi to Pune.
• He also stated that his father suffers from seizures and asthma and his mother had undergone a cervical biopsy due to which he was needed by his aged parents.

The rationale of the Judgment

The judges decided the case considering the following contentions made by both the parties:
• The claim made by the petitioner that she is unemployed and doesn’t have an independent source of income was not seriously disputed by the respondent but on the contrary, he has attempted to take advantage of the fact that the wife is unemployed by claiming in the ground no. (F) that no inconvenience will be caused to the wife, who is unemployed if she is made to attend the proceedings in Pune.
• The claim of the wife regarding not giving maintenance is also not disputed.
• The respondent’s party has highly relied on Sec 21-A (2)(b) of Hindu Marriage Act 1956, the section provides guidelines as to transfer of petition for certain cases. It is to be observed that the court in the order has stated that “…contention is misconceived, as can be seen from the plain language of Section 21-A in entirety,…” here the court has tried to enunciate the scope of interpretation of this Section in this case.
• The court referred the case of Guda Vijalakshmi vs. Guda Ramchandra Sekhara Sastry wherein the Court rejected the contention that the substantive provision contained in Section 25 CPC is excluded by reason of Section 21 of the Hindu Marriage Act, 1955.

Judgment

The Supreme Court observed the contentions made by the parties and passed an order in the favour of the wife. Thus the petitions of divorce and restitution of conjugal rights are to be tried in the Family Court of Delhi.

Conclusion

In this case, the court has adopted an analytical approach towards interpreting the language of the law made. The court determined that the pre-condition for application of Section 21-A was not satisfied due to which the petition was transferred to Pune. It is to be seen that Sec 25 of CPC has prevailed wherein a conflict of both the sections was observed.

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Sachin & Anr vs Jhabbu Lal & Anr

Facts:

The appellants namely Sachin and Sanjay along with their wives were occupants of the first and second floor respectively of self-acquired property, belonging to their parents. The respondents namely Jhabbu Lal and Smt. Raj Devi, parents of appellants, had directed their younger son Sachin to pay Rs. 3,500/- monthly as rent. The appellant did not comply with his obligation; consequently, a suit was filed for imposing a permanent injunction. The matter was proposed to be sought through mediation; however, it was a ‘Non- Starter’. The parties moved to the High Court seeking relief.

Issues:

• Whether the imposition of an injunction, as prayed by the appellants, stands?
• Whether the appellants are co-owners of the property?

Legal Provisions:

• Section 100, Civil Procedure Code, 1908

Appellants’ Contention:

The appellant submitted that he was incapable of meeting the financial obligation he was put through. It was further submitted that they had contributed towards the construction of the property which deems them to be co-owners of the property and are not obligated to pay for staying in the premises, which they partly own. Therefore, it was prayed to dismiss the appeal of the imposition of an injunction.

Respondents’ Contention:

The mother of the appellants submitted that the behavior of their sons and daughters-in-law was inappropriate which made their living miserable. In addition, the appellants were not taking the responsibility for the submission of payment of electricity bills. Since the respondents are old citizens, they cannot carry out the financial payments solely and the appellants have been continuously defaulting on payments. Hence, it was prayed to impose a permanent and mandatory injunction.

Observation of the Court:

On the basis of documentary evidence submitted by the appellants i.e General Power of Attorney, Agreement to Sell, Receipt possession letter, Affidavit, etc., don’t show any contribution made by the appellants as contented by them, which implies that the parents are the exclusive owners of the self-acquired property. The house was given to the appellants on account of love and affection by parents. The court clarified by stating that son whether married or unmarried has no legal right to live in the house and is only possible at the mercy of his parents till they allow. Cordial relations do not necessitate the parents to bear the burden of their sons throughout life. There is no ground for the court to exercise Section 100 of the Code of Civil Procedure.

Judgment:

The court upheld a decree of imposing a permanent injunction and ordering the parties to bear their own costs.

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Introduction

Breach of every right should be compensated by a remedy. An aggrieved person can file a suit in a competent court and can demand his remedy. But few suits are barred by the doctrines of res sub judice and res judicata under the Civil Procedure Code. Res judicata means a thing already adjudicated. If an issue has already been decided, then a second chance to file a suit dealing with the same issue in a court is not entertained. The English Common Law system established the concept of res judicata and from there it was adopted by the Code of Civil procedure. Section 11 of the Code of Civil Procedure talks about the res judicata. If any of the parties of a case approach the court with the same issue which is already been addressed with judgment, then such a suit can be stuck down by the doctrine of res judicata based on the principles of public policy.
The main role of res judicata is played in the administrative law because it administers the work of the judiciary in disposing of each case.
Res judicata applies only for the cases where a petition is filed more than once in a court by the same parties and with the same issues. It can be the same court or any other court within the country. “Justice is ensured when a case is fairly tried and all litigations about the case are to be concluded”, this was the idea of Justice Campbell, Former Associate Justice of the Supreme Court of the United States. The principles of conclusiveness are implied by the doctrine of res judicata. This doctrine preserves the resultant effect of the first judgment pronounced by the court. The multiplicity of the suit are avoided, this helps in reducing the load of the suit pending in the courts. This bars the concept of re-litigation and the finality of “lis” is reached. . In the Indian Legal system, the doctrine of res judicata applies to both civil and criminal law.

Origin of Res judicata

The rule of conclusiveness in Section 11 is derived from these legal maxims:
• “Nemo debet lis vaxari pro eadem causa”
This means that no person should be tormented or harassed or punished two times for the same cause of action. If an order is delivered for a particular case and the wrongdoer is punished. Then the same cause of action if brought in another court by the same party will again torment and punish the wrongdoer. The basic idea of res judicata has been rooted in this maxim.
• “Interest republicae ut sit finis litium”
It is a concern of the state that there should be an end of litigation. Re-litigation is prevented by the doctrine of res judicata. But if the court is satisfied that a subsequent suit can be decided based on a legal point, then res judicata won’t apply and the court is open to decide such suit.
• “Res judicata pro veritate occipitur”
A judicial decision should be adjudged as true. The parties to the suit should accept the order of the court as the final decision and they should not come up with another suit with the same issue. The rule of res judicata is not only applied in a separate subsequent proceeding but also it is invoked in the subsequent stages of the same proceeding. Therefore, the parties should accept each stage of the proceeding.

Essentials conditions under Section 11 of the Civil Procedure code

Before applying the doctrine of res judicata, the following conditions have to be satisfied:
• Presence of 2 suits – Former suit which has already been decided and the subsequent suit which is instituted.
• Both suits should have the same parties or the same representatives.
• The issue or the subject matter of the subsequent suit should be the same as the issue dealt with in the former suit. It is sufficient if the substance of the issue is present.
• The parties in both suits must have litigated under the same title.
• The order of the former suit should have been delivered by a court with competent jurisdiction.
• In the former suit, the parties must have the opportunity to be heard and the case must have been finally decided between the parties.

Constructive Res Judicata

The essence of Explanation IV of Section 11 of the Civil Procedure Code is about the constructive res judicata. It is formed as the duplicate of res judicata. This rule is also based on the considerations of public policy. When a party didn’t raise a plea in the former suit even though they had an opportunity to do so, and later if they file such a plea in their subsequent suit, then also the rule of res judicata applies to the subsequent suit, this is known as the concept of constructive res judicata. If X being the legal heir of Z files a suit against Y for entitlement of property and the suit is dismissed. Then in the subsequent suit X cannot claim the same property based on the ground of adverse possession. This plea should have been raised in his former suit, therefore he is barred by the rule of constructive res judicata. Similarly, if a defendant fails to raise all the objections in the former suit will not be entertained to raise those objections in his subsequent suit. It is constructively in the issue already raise in the former suit, therefore it cannot be the ground of attack or defense in the subsequent suit.
The rule tests whether any of those parties had the opportunity to raise an issue in the former suit if there is a chance to do so then such an issue in question is deemed to have been decided. In Tata Industries Ltd. v. Grasim Industries Ltd, the issue raised in this case was whether the jurisdiction to appoint an arbitrator could be raised directly in Supreme Court. The question of “locus standi”, which is not raised in the High Court, cannot be raised directly in Supreme Court. The Court applied the doctrine of constructive res judicata and held that it was considered as an abandonment of the issue and cannot survive in the Supreme Court. In another case, the Supreme Court held that the suit is barred by constructive res judicata only when the plaintiff knew that such a plea could have been raised in the earlier suit. Constructive res judicata applies to subsequent stages of the same proceedings.

Writ petitions and Res judicata

The general principle of res judicata applies even to writ petitions filed under Article 32 or Article 226 of the Indian Constitution. The only exception is the Habeas corpus. If a petition is barred in the former suit, the subsequent petition is also barred. The question is whether constructive res judicata has an application in the writ petition. The Supreme Court held that the constructive res judicata also applies to writs. The successive writ petition filed by the same parties with the same relief is barred by res judicata. Also, decisions made between the parties of the writ petitions will be taken into consideration for res judicata.

Appeals and Res judicata

The appeal process is not restricted by res judicata, this is one of the main criticism given to the principle of res judicata. It is considered as an extension of the same lawsuit in going up and coming down in the hierarchy of courts. Appeals usually challenge a judgment given by a court and a new trial is not initiated. If the right to appeal is exhausted, then it is considered as a separate case and in that situation, res judicata will apply. When an appeal is pending in a court, and final judgment on the same issue is delivered by another competent court, then it operates as res judicata. If a former appeal has been rejected as time-barred, then res judicata can be applied in a subsequent appeal.

Exceptions to res judicata

The exceptions to res judicata are usually known as a collateral attack based on the competence of the former court. Proper reasoning should be given by the court before discarding a case using the doctrine of res judicata. When special leave petitions are dismissed without adjudication, then res judicata will not apply. The principles of res judicata strictly do not apply to public interest litigation. Article 32 allows the Supreme Court to issue writs and the High Court is vested with some power regarding writs under Article 226. Dismissal of a writ petition in limine is one of the exceptions to res judicata. Res judicata cannot be applied in cases where re-litigation is needed. The doctrine of res judicata does not apply to Habeas corpus cases. If one habeas corpus petition is dismissed, then subsequent petition with fresh grounds will not be discarded. The rights under Section 11 cannot be exercised if new laws bring new changes that lead to the filing of a subsequent suit with the same cause of action.
If the former suit has been obtained by fraud, then res judicata will not apply in the subsequent suit. Section 44 of the Indian Evidence Act, 1872 talks about the incompetency of court or fraud in obtaining a judgment. The court held that if a guardian of the minor without bona fide intention has filed the former case in collusion with the defendant, then it amounts to fraud as per Section 44 and res judicata does not apply in the subsequent suit. Mere negligence in the previous suit does not act as an exception to the principle of res judicata. If there is a different cause of action in both the suits, then the court cannot bar the suit based on section 11 of the code.
Immediate relief given to the parties like interlocutory orders will not be barred by res judicata, because those orders can be changed in the subsequent suit. Even in taxation cases, the doctrine of res judicata has no application. The liability to pay tax each year differs and they are independent of each other. Each year’s tax assessment applies only to that year and it has no governance in the following years. If the order given by the court in the former suit does not have jurisdiction, the principle of res judicata will not have an application in the subsequent suit. If a proceeding of a court is initiated illegally and without jurisdiction, then res judicata will not apply. The doctrine of Res judicata is a procedural provision and it cannot be applied if a pure question of law is raised in the case.

Res sub judice – Stay of Suit

“Where there has been an appeal, the matter is no longer res judicata but res sub judice and where an appeal is not finally heard and decided any matters therein cannot possibly be said to be res judicata”
When more than one case is filed in different courts by the same parties with the same issue, then the court has uses the principle of “stay of suit”. Section 10 of the Civil Procedure Code provides for a stay of the suit. The competent court has the power to stay the proceeding of such type of case. This doctrine of res sub judice prevents the simultaneous happening of two litigations with the same cause of action by two courts which has concurrent jurisdiction. But the pendency of a suit in a foreign court does not prevent a person to file a suit with the same cause of action in the courts of India.
When the provision of section 10 of the civil procedure code does not apply strictly in a case, then to ensure justice, section 151 of the code empowers the civil court to stay a suit proceedings. The main aim of this doctrine is to avoid contradictory decisions of two different courts, so the stay of the suit shall stop the trial from proceeding further. This doctrine applies only to the trial of suit and not the institution of a suit. Section 10 is just a rule of procedure and can be waived. After the parties waive their right, they cannot challenge the validity of the subsequent proceedings. The doctrine of res sub judice does not prevent the court to pass interlocutory orders, therefore a court may pass interim orders in a stayed suit.

The main difference between res sub judice and res judicata:

• Section 10 deals with res sub judice and section 11 deals with res judicata.
• Res sub judice deals with the matters pending the court or judicial inquiry. But res judicata deals with matters which are already adjudicated upon.
• Res sub judice stays the suit which is filed later with the same issue as the previous suit. While res judicata bars the subsequent suit which has the same matter of issue as the former suit.
• Res sub judice prevents two parallel proceedings of the same dispute but res judicata prevents the second trial of the same dispute.

Conclusion

Once a decision is made by the court, then the parties cannot move back in time. Res judicata is a wide concept. It has applicability to many domains of society. Supreme Court through its various judgments has shown the vital role played by the doctrine of res judicata in our legal system. The re-litigation process is controlled and maintained by res judicata. As per section 11 of the Civil Procedure Code, the court can apply the principle of res judicata in a case when they think that the matter in issue has already been decided in the former case. This helps in bringing finality in legislation and prevents multiple contradictory judgments with the same subject matter. A suit already adjudicated by the court should not be raised again by the parties, they should accept the order delivered. Indian Legal system without res judicata is unimaginable.

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Introduction

Breach of every right should be compensated by a remedy. An aggrieved person can file a suit in a competent court and can demand his remedy. But few suits are barred by the doctrines of res sub judice and res judicata under the Civil Procedure Code. Res judicata means a thing already adjudicated.  If an issue has already been decided, then a second chance to file a suit dealing with the same issue in a court is not entertained. The English Common Law system established the concept of res judicata and from there it was adopted by the Code of Civil procedure. Section 11 of the Code of Civil Procedure talks about the res judicata. If any of the parties of a case approach the court with the same issue which is already been addressed with judgment, then such a suit can be stuck down by the doctrine of res judicata based on the principles of public policy.^[1] The main role of res judicata is played in the administrative law because it administers on the work of the judiciary in disposing of each case.   

Res judicata applies only for the cases where a petition is filed more than once in a court by the same parties and with the same issues. It can be the same court or any other court within the country. “Justice is ensured when a case is fairly tried and all litigations about the case are to be concluded”, this was the idea of Justice Campbell, Former Associate Justice of the Supreme Court of the United States. The principles of conclusiveness are implied by the doctrine of res judicata. This doctrine preserves the resultant effect of the first judgment pronounced by the court. The multiplicity of the suit are avoided, this helps in reducing the load of the suit pending in the courts. This bars the concept of re-litigation and the finality of “lis” is reached.^[2]. In the Indian Legal system, the doctrine of res judicata applies to both civil and criminal law.

Origin of Res judicata

The rule of conclusiveness in Section 11 is derived from these legal maxim^[3]: 

• “Nemo debet lis vaxari pro eadem causa”

This means that no person should be tormented or harassed or punished two times for the same cause of action. If an order is delivered for a particular case and the wrongdoer is punished. Then the same cause of action if brought in another court by the same party will again torment and punish the wrongdoer. The basic idea of res judicata has been rooted in this maxim.^[4]

• “Interest republicae ut sit finis litium”

It is a concern of the state that there should be an end of litigation. Re-litigation is prevented by the doctrine of res judicata.^[5] But if the court is satisfied that a subsequent suit can be decided based on a legal point, then res judicata won’t apply and the court is open to decide such suit.^[6]

• “Res judicata pro veritate occipitur”

A judicial decision should be adjudged as true. The parties to the suit should accept the order of the court as the final decision and they should not come up with another suit with the same issue. The rule of res judicata is not only applied in a separate subsequent proceeding but also it is invoked in the subsequent stages of the same proceeding.^[7] Therefore, the parties should accept each stage of the proceeding.

Essentials conditions under Section 11 of the Civil Procedure code

Before applying the doctrine of res judicata, the following conditions have to be satisfied:

• Presence of 2 suits – Former suit which has already been decided and the subsequent suit which is instituted.
• Both suits should have the same parties or the same representatives.
• The issue or the subject matter of the subsequent suit should be the same as the issue dealt in the former suit. It is sufficient if the substance of the issue is present.^[8]
• The parties in both suits must have litigated under the same title.^[9]
• The order of the former suit should have been delivered by a court with competent jurisdiction. 
• In the former suit, the parties must have given the opportunity to be heard and the case must have been finally decided between the parties.^[10]

Constructive Res Judicata

The essence of Explanation IV of Section 11 of the Civil Procedure Code is about the constructive res judicata. It is formed as the duplicate of res judicata.^[11] This rule is also based on the considerations of public policy.^[12] When a party didn’t raise a plea in the former suit even though they had an opportunity to do so, and later if they file such a plea in their subsequent suit, then also the rule of res judicata applies to the subsequent suit, this is known as the concept of constructive res judicata. If X being the legal heir of Z files a suit against Y for entitlement of property and the suit is dismissed. Then in the subsequent suit X cannot claim the same property based on the ground of adverse possession. This plea should have been raised in his former suit, therefore he is barred by the rule of constructive res judicata. Similarly, if a defendant fails to raise all the objections in the former suit will not be entertained to raise those objections in his subsequent suit. It is constructively in the issue already raise in the former suit, therefore it cannot be the ground of attack or defence in the subsequent suit.

The rule tests whether any of those parties had the opportunity to raise an issue in the former suit, if there is a chance to do so then such issue in question is deemed to have been decided.^[13] In Tata Industries Ltd. v. Grasim Industries Ltd^[14], the issue raised in this case was whether the jurisdiction to appoint an arbitrator could be raised directly in Supreme Court. The question of “locus standi”, which is not raised in the High Court, cannot be raised directly in Supreme Court. The Court applied the doctrine of constructive res judicata and held that it was considered as an abandonment of the issue and cannot survive in the Supreme Court. In another case, the Supreme Court held that the suit is barred by constructive res judicata only when the plaintiff knew that such a plea could have been raised in the earlier suit.^[15] Constructive res judicata applies to subsequent stages of the same proceedings.^[16]

Writ petitions and Res judicata

The general principle of res judicata applies even to writ petitions filed under Article 32 or Article 226 of the Indian Constitution.^[17] The only exception is the Habeas corpus.^[18] If a petition is barred in the former suit, the subsequent petition is also barred. The question is whether constructive res judicata has an application in the writ petition. The Supreme Court held that the constructive res judicata also applies to writs.^[19] Successive writ petition filed by the same parties with the same relief is barred by res judicata.^[20] Also, decisions made between the parties of the writ petitions will be taken into consideration for res judicata.^[21]

Appeals and Res judicata

The appeal process is not restricted by res judicata, this is one of the main criticism given to the principle of res judicata. It is considered as an extension of the same lawsuit in going up and coming down in the hierarchy of courts. Appeals usually challenge a judgment given by a court and a new trial is not initiated. If the right to appeal is exhausted, then it is considered as a separate case and in that situation, res judicata will apply. When an appeal is pending in a court, and final judgment on the same issue is delivered by another competent court, then it operates as res judicata.^[22] If a former appeal has been rejected as time-barred, then res judicata can be applied in a subsequent appeal.^[23]

Exceptions to res judicata

The exceptions to res judicata are usually known as a collateral attack based on the competence of the former court. Proper reasoning should be given by the court before discarding a case using doctrine of res judicata. When special leave petitions are dismissed without adjudication, then res judicata will not apply. The principles of res judicata strictly do not apply to public interest litigation.^[24] Article 32 allows the Supreme Court to issue writs and the High Court is vested with some power regarding writs under Article 226. Dismissal of a writ petition in limine is one of the exceptions to res judicata.^[25] Res judicata cannot be applied in cases where re-litigation is needed. The doctrine of res judicata does not apply to Habeas corpus cases. If one habeas corpus petition is dismissed, then subsequent petition with fresh grounds will not be discarded.^[26] The rights under Section 11 cannot be exercised if new laws bring new changes that lead to the filing of a subsequent suit with the same cause of action. 

If the former suit has been obtained by fraud, then res judicata will not apply in the subsequent suit. Section 44 of the Indian Evidence Act, 1872 talks about the incompetency of court or fraud in obtaining a judgment. The court held that if a guardian of the minor without bona fide intention has filed the former case in collusion with the defendant, then it amounts to fraud as per Section 44 and res judicata does not apply in the subsequent suit.^[27] Mere negligence in the previous suit does not act as an exception to the principle of res judicata.^[28] If there is a different cause of action in both the suits, then the court cannot bar the suit based on section 11 of the code.

Immediate relief given to the parties like interlocutory orders will not be barred by res judicata, because those orders can be changed in the subsequent suit. Even in taxation cases, the doctrine of res judicata has no application. The liability to pay tax each year differs and they are independent of each other.^[29] Each year’s tax assessment applies only to that year and it has no governance in the following years.^[30] If the order given by the court in the former suit does not have jurisdiction, the principle of res judicata will not have an application in the subsequent suit. If a proceeding of a court is initiated illegally and without jurisdiction, then res judicata will not apply.^[31] The doctrine of Res judicata is a procedural provision and it cannot be applied if a pure question of law is raised in the case.^[32]

Res sub judice – Stay of Suit

“Where there has been an appeal, the matter is no longer res judicata but res sub judice and where an appeal is not finally heard and decided any matters therein cannot possibly be said to be res judicata”^[33]

When more than one case is filed in different courts by the same parties with the same issue, then the court has uses the principle of “stay of suit”. Section 10 of the Civil Procedure Code provides for a stay of the suit. The competent court has the power to stay the proceeding of such type of case.  This doctrine of res sub judice prevents the simultaneous happening of two litigations with the same cause of action by two courts which has concurrent jurisdiction. But the pendency of a suit in foreign court does not prevent a person to file a suit with the same cause of action in the courts of India.

When the provision of section 10 of the civil procedure code does not apply strictly in a case, then to ensure justice, section 151 of the code empowers the civil court to stay a suit proceedings.^[34] The main aim of this doctrine is to avoid contradictory decisions of two different courts, so the stay of the suit shall stop the trial from proceeding further. This doctrine applies only to the trial of suit and not the institution of a suit. Section 10 is just a rule of procedure and can be waived. After the parties waive their right, they cannot challenge the validity of the subsequent proceedings. The doctrine of res sub judice does not prevent the court to pass interlocutory orders, therefore a court may pass interim orders in a stayed suit.^[35]

The main difference between res sub judice and res judicata:

• Section 10 deals with res sub judice and section 11 deals with res judicata.
• Res sub judice deals with the matters pending the court or judicial inquiry. But res judicata deals with matters which are already adjudicated upon.
• Res sub judice stays the suit which is filed later with the same issue as the previous suit. While res judicata bars the subsequent suit which has the same matter of issue as the former suit.
• Res sub judice prevents two parallel proceedings of the same dispute but res judicata prevents the second trial of the same dispute.

Conclusion

Once a decision is made by the court, then the parties cannot move back in time. Res judicata is a wide concept. It has applicability to many domains of society. Supreme Court through its various judgments has shown the vital role played by the doctrine of res judicata in our legal system. The re-litigation process is controlled and maintained by res judicata. As per section 11 of the Civil Procedure Code, the court can apply the principle of res judicata in a case when they think that the matter in issue has already been decided in the former case. This helps in bringing finality in legislation and prevents multiple contradictory judgments with the same subject matter. A suit already adjudicated by the court should not be raised again by the parties, they should accept the order delivered. Indian Legal system without res judicata is unimaginable.

^[1] Bhanu Kumar Jian v. Archna Kumar, A.I.R. 2005 S.C.W. 270.

^[2] Escorts Farms Ltd. v. Commissioner, Kumaon Division, Nainital, A.I.R. 2004 S.C. 2186.

^[3] Deva Ram v. Ishwar Chand, A.I.R. 1996 S.C. 378.

^[4] Ashok Kumar Srivastav v. National Insurance Co. Ltd., (1998) 4 S.C.C. 361.

^[5] Subramanian Swamy v. State of Tamil Nadu, A.I.R. 2015 S.C. 460.

^[6] Pukhraj D. Jain v. G. Gopalakrishna, (2004) 7 S.C.C. 251.

^[7] Y.B. Patil v. Y.L. Patil, 1976 (4) S.C.C. 66.

^[8] Md Ali v. Upendra, 58 C.L.J. 196.

^[9] Abdul Gani v. Nabendra Kishore Roy, A.I.R. 1930 Cal 47.

^[10] Dadu Dayalu Mahasabha, Jaipur v. Mahant Ram Niwas, A.I.R. 2008 S.C. 2187.

^[11] Amalgamated Coalfields v. Janapadasabha, A.I.R. 1964 S.C. 1013.

^[12] Daryao v. The State of Uttar Pradesh, A.I.R. 1961 S.C. 1457.

^[13] Konda Lakshmana Bapuji v. Government of Andhra Pradesh, A.I.R. 2002 S.C. 1012.

^[14] Tata Industries Ltd. v. Grasim Industries Ltd, (2008) 10 S.C.C. 187.

^[15] State of Uttar Pradesh v. Nawab Hussain, A.I.R. 1977 S.C. 1680.

^[16] State of Orissa v. Janamohan Das, A.I.R. 1993 Ori 180.

^[17] M.S.M Sharma v. Dr. Shree Krishna, A.I.R. 1960 S.C. 1186.

^[18] Ghulam Sarwar v. Union of India, A.I.R. 1967 S.C. 1335.

^[19] Devi Lal Modi v. Sales tax officer, A.I.R. 1965 S.C. 1153.

^[20] Tilk Rice & Oil Mills Pvt. Ltd. v. DGM, Union Bank of India, A.I.R. 2009 Ori 26.

^[21] Brahmdeo Ojha v. The Union of India, 2003 (3) B.L.J.R. 2133.

^[22] Badal Das Jethmul firm v. Gurdinomal Narumal firm, A.I.R. 1939 Sind 329.

^[23] Shivarama Bhat v. Thimma Poojary, A.I.R. 2003 Kant 455.

^[24] M.C. Mehta v. Union of India, (2000) 5 S.C.C. 525.

^[25] Daryao v. State of Uttar Pradesh, A.I.R. 1961 S.C. 1457.

^[26] Sunil Dutt v. Union of India, A.I.R. 1982 S.C. 53.

^[27] Beli Ram v. Chaudri Mohammad Afzal, (1948) 50 B.O.M.L.R. 674.

^[28] Talluri Venkata Seshayya v. Thadikonda Kotiswara Rao, (1937) 39 B.O.M.L.R. 317.

^[29] Broken Hill Proprietary Co. Ltd. v. Broken Hill Municipal Council, 1926 A.C. 94.

^[30] Instalment Supply private limited v. Union of India, A.I.R. 1962 S.C. 53.

^[31] Fatma Bibi Ahmed Patel v. State of Gujarat, (2008) 6 S.C.C. 789.

^[32] Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar, (2008) 9 S.C.C. 54.

^[33] Obedur Rahman v. Darbari Lal, A.I.R. 1927 Lah 1.

^[34] Jado Rai v. Onkar Prasad, A.I.R. 1975 All 413.  

^[35] Indian bank v. Maharashtra State Coop. Marketing Federation Ltd., A.I.R. 1998 S.C. 1952.

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