Doctrine of Res-Subjudice and Res-Judicata  : Pendency of Suit in a Foreign Court  : Doctrine of Constructive Res Judicata : Doctrine of Actual Res Judicata : Difference between Actual and Constructive Res Judicata

RES-SUBJUDICE

Section 10 of the Civil Procedure Code (CPC) specifies that no court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, provided that the court in which the previous suit is pending is competent to grant the relief claimed. However, the pendency of a suit in a foreign court does not bar a court in Pakistan from trying a suit founded on the same cause of action.

Object of the Doctrine

Section 10 is enacted to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits concerning the same matter in issue.

Nature and Scope of the Doctrine

The rule contained in Section 10 is mandatory in nature, provided all the conditions of the rule are satisfied. It applies to all civil courts in Pakistan.

Conditions of Res Sub Judice

For the application of Section 10, the following conditions must be fulfilled:

1. Pendency of two or more suits.

2. The matter in issue must be directly and substantially the same.

3. The parties in both suits must be the same.

4. The subject-matter and cause of action must be the same.

5. The court in which the previous suit is pending must be competent to try the subsequent suit.

6. The suits must be instituted in Pakistan.
   (According to the explanation of Section 10 of CPC 1908: "The pendency of a suit in a foreign court does not preclude the courts in Pakistan from trying a suit founded on the same cause of action.")

Pendency of Suit in a Foreign Court

Section 10 clearly provides that the pendency of a suit in a foreign court does not preclude the court in Pakistan from trying a suit on the same issues. However, in the exercise of its equitable powers, the court before which a suit is pending can restrain a party from continuing similar proceedings in a foreign court.

RES JUDICATA

Section 11 of the CPC deals with the concept of res judicata. The term res judicata is Latin and originates from Roman law. Ballentine, in his Law Dictionary, defines it as "a thing settled by judicial decision." Thus, res judicata means a final judicial decision by a court of competent jurisdiction, once pronounced between parties/litigants, cannot be contradicted by any of them in any subsequent litigation concerning the same subject matter.

Basis of the Principle

The doctrine of res judicata is based on the following principles:

• Nemo Debet Bis Vexari Pro Eadem Causa – No person should be vexed twice for the same cause.

• Interest Reipublicae Ut Sit Finis Litium – It is in the interest of the state that there should be an end to litigation.

• Res Judicata Pro Veritate Accipitur – A judicial decision must be accepted as correct.

Roots of the Principle

As observed by Sir Lawrence Jenkins, the rule of res judicata, though founded on precedent, is dictated by timeless wisdom. Referring to the opinion of the judges expressed in 1776 in the case of Duchess of Kingston, two general principles were derived:

1. The judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea or evidence conclusive between the same parties upon the same matter in another court.

2. The judgment of a court of exclusive jurisdiction directly upon the point is similarly conclusive upon the same matter between the same parties, even if it arises incidentally in another court.

Doctrine of Res Judicata under Section 11

“No court shall try any suit or issue in which the matter is directly and substantially in issue, and has been directly and substantially in issue in a former suit between the same parties or between those under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been raised and has been heard and finally decided by such court.”

Conditions for the Application of Res Judicata

1. Two or more suits.

2. One of the suits must have already been decided.

3. The former suit must be between the same parties.

4. The subject matter must be the same as decided in the former suit.

5. The cause of action must be the same.

6. The court must be competent to try the subsequent suit.

7. The former suit must have been heard and finally decided.

Doctrine of Constructive Res Judicata

The rule of direct res judicata is limited to matters actually in issue, as alleged by one party and either admitted or denied by the other, expressly or impliedly.

However, constructive res judicata provides that if a plea could have been raised in a previous proceeding between the same parties concerning the same subject matter, it should not be allowed to be raised again in a subsequent proceeding.

Case Reference: [2004 CLC 1033]
"The doctrine of constructive res judicata is applicable in cases where the respondent attempts to re-open a case that has already been conclusively decided."

Constructive Res Judicata under Section 11 Explanation IV

“Any matter which might and ought to have been made a ground of attack or defence in a former suit shall be deemed to have been a matter directly and substantially in issue.”

Exceptions to Constructive Res Judicata

1. Where the pleas are barred by law.

2. Where the pleas were not required to be raised in the former suit.

3. Where the plea was raised but not decided by the court.

4. Where the matter was not in issue either actually or constructively.

Doctrine of Actual Res Judicata (Explanation III to Section 11)

“The matter referred to above must, in the former suit, have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.”

Difference between Actual and Constructive Res Judicata

Distinction between Res Sub Judice and Res Judicata

1. Res Sub Judice requires two pending suits; Res Judicata involves a previously decided suit.

2. In Res Sub Judice, the matter in issue must be substantially the same; in Res Judicata, the issue must have already been decided in the former suit.

3. Res Sub Judice applies when the previous suit is still pending in a court competent to try the later suit; Res Judicata applies only when the former suit has been finally decided.

4. In both doctrines, the parties must be the same or under the same title.

5. Res Judicata ensures finality to decisions; Res Sub Judice ensures avoidance of parallel proceedings.