Res sub judice, Res judicata and
consolidation of SUITS
The principles of contesting civil cases
are comprehensive and there are innumerable lateral branches that one has to
deal with in the process of filing of civil cases till its culmination by way
of a judgment and decree. Any dispute shall entail objection to that and
therefore when a suit is filed, opposition is filed by way of written
statement- both on facts and law. In the written statement, preliminary
objections as regards the maintainability of the suit is raised apart from the
revert on merit. The suit preferred shall have to narrate facts and material
facts. It should vividly illustrate cause of action, valuation, jurisdiction
and valuation of suits including the payment of court fee. If court is
satisfied on the bare essentials and summons are issued to the defendants or
respondents as the case may be, the defendant/respondent joins the proceedings,
thereafter. Another vital fact in the context may be if there is pendency of
similar cases with same or similar parties or similar lis. There may also be
instances, where judgment and decree is already passed by a court of first
instance and the subsequent suit is instituted by a party to the earlier suit. Whether,
any such subsequent suit or case could be instituted and if so, what are the
legal parameter stipulated in this regard.
It is therefore apt to discuss and
deliberate the principles of Res sub
judice, Res judicata and consolidation of suits/cases.
RES
SUB JUDICE
The term res sub judice which
in Latin means “Under Judgment”. The principle of Res Judice is contained in Section 10 of Code of Civil Procedure.
In essence, it implies that that a matter is being considered by a court or judge.
As per the principles of when any issue is pending in a Court of law for
adjudication between the same party or same set of parties, any other court is
barred from trying that issue so long during the pendency of earlier suit. In
such an eventuality the proceedings in subsequent suit is liable to be stayed
by the court.
Section 10 CPC
The recital of
the aforesaid section is as under::
“No Court shall proceed with the
trial of any suit in which the matter in issue is also directly and substantially
in issue in a previously instituted suit between the same parties or between
parties under whom they or any of them claim litigating under the same title
where such suit is pending in the same or any other Court in India having
jurisdiction to grant the relief claimed, or in any Court beyond the limits of
India established or continued by the Central Government and having like
jurisdiction or before the Supreme court.
The pre-requisites to the applicability of
Section 10
(i)
Relates to pending suits’
(ii)
Final decision in both the suits are
not rendered;
(iii)
Subject matter of both the suit is
identical;
(iv)
It is referable to a suit instituted
in civil courts;
(v)
This is a rule of procedure and if a
decree is passed in contravention, the same shall not be a nullity;
(vi)
If a subsequently instituted suit can
be decided on law points without recording evidence, then it is open to the
Court to decide the same with a view to nip in bud the issues which may have
been raised to delay the proceedings or for other collateral/oblique reasons. .
The very reason of section 10 of the
CPC is to avoid multiplicity of proceedings and also to avoid the prospect of two
conflicting decisions in the same matter by different courts. With a view to
meet such eventualities it is envisaged that the courts in apt cases may pass
an order of consolidation of such suits. A well known case in this regard for
reference is a judgment rendered by Rajasthan High Court in a matter captioned
as Anurag and Co. and Anr. vs.
Additional District Judge and Others
AIR 2006 Raj 119.
RES JUDICATA
Similarly, ‘Res
judicata’ is a Latin maxim that implies
that the ‘matter has already been decided. It thus follows that when a matter
stands finally decided by way of a final judgment between the same party and on
similar facts. We also know that appeal is a continuation of the main case and
therefore, when the appeal was preferred and decided then the principles of res
Judicata shall apply. In case no appeal is preferred, then too the principles
of Res Judicata shall apply. The
doctrine of Res Judicata operate as
an explicit embargo to a proceeding on the same grounds and between same
parties when the matter in issue stands duly adjudicated by courts of law.
The provision of Res Judicata is contained in section 11
of Code of Civil Procedure.
Section 11: Res Judicata:
No
Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former
suit between the same parties, or between parties under whom they or any of
them, litigating under the same title, in a Court competent to try such
subsequent suit or the suit in which such issue has been subsequently raised,
and has been heard and finally decided by such Court.
|
Res Judicata |
Estoppel |
|
It debars a court from exercising its jurisdiction to determine
the lis, if it has attained finality between the parties |
The doctrine is invoked against a party, if such an issue is
decided against him and thus he would be pr3ecluded from raising it in any
subsequent or latter proceedings |
CONSOLIDATION OF
SUITS
That the hon’ble Supreme Court in a judgment reported as Chitivalasa
Jute Mills Vs jaypee Rewa Cement Ltd AIR 2004 SC 1687 it is held has held that
suits between the same parties and arising out of common cause of action should
be consolidated in order to save the parties from the possibility of two courts
recording inconsistent or contradictory findings. The very object of this is to
prevent prospect of any conflicting decrees and/or to avoid multiplicity of
proceedings and unnecessary delay that may be caused due to such ongoing
proceedings. Though, the Code of Civil Procedure does not specifically
prescribe any stipulation as regards consolidation, yet, the principles has
emerged as a procedure under the inherent power of courts under Section 151 of
Code of Civil Procedure. The court as a matter of procedure has adopted the
route of consolidation of cases, if two or more suits or cases either
completely or substantially are similar on the issues emanating for decision in
two suits/cases, when parties are same or substantially the same.
The principles of Res
judicata is a procedural provision and in case any jurisdictional error has
lead to any decision, then principles of res
judicata shall not be applicable. It is a settled proposition in law that
when a decision is rendered without jurisdiction that will be a nullity and if
that is so, the procedural principles like estoppels, waiver or Res Judicata shall not be applicable.
In AIR 1953 Hyderabad 130 captioned as Nankoo
Nathia v. Nagnur Parmeshwaramma and Ors the issue was of consolidation
of cross suits. Para 8 of the said judgment reads as under:-
“The
question that has to be considered is as to whether having regard to the nature
of the suits, they could be consolidated together. We went through the plaints
in both the cases. In our opinion, having regard to the nature of the sits they
could be consolidated. The contention is that under Section 648, Hyderabad
Civil P.C. only cross-suit could be consolidated and as these are not
cross-suits, these could not be consolidated. It is true that both these suits
are of the plaintiff herself and these are not cross-suits. So Section 648,
Hyderabad Civil P.C. Would not be applicable. But we do not agree with the
contention of the learned advocate that the Court has no inherent power to
consolidate the suits of this nature which are not cross-suits. It may be
pointed out that every Court whether a Civil Court or other wise, must
therefore, in the absence of express provision for the purpose be deemed to
possess inherent powers in its very constitution all such powers as are
necessary to do the right and undo the wrong in the course of the
administration of justice. Admittedly, excepting Section 648, Hyderabad Civil
P.C. There is no other specific provision to that effect. In the absence of
express provision the Court must be deemed to have inherent power, and in this
contention it has the inherent power to determine how its proceedings should be
conducted”.
One may wonder, if the section 10 of
Code of Civil Procedure and the perceived inherent power for consolidation are
itself mutually inconsistent. In fact, the courts are conscious of the said
facts and it has been held that Section 10 CPC is not intended to take away the
inherent powers of the Court to consolidate in the interest of justice in
appropriate cases different suits between same parties in which the matter in
issue is substantially and directly the same. In P.P Gupta Vs East Asiatic Co. 1960
Allahabad 184, Para 20 is reproduced hereunder for ready reference:-
“It has been the settled view of the High
Courts all over India that a court has an inherent power to consolidate suits
in appropriate cases. The very nature of the principle of consolidation implies
that there is a similarity or identity of the matter in issue in different
suits between the same parties which should be decided by the court once and
for all. The object of consolidation is to avoid multiplicity of litigation
between the same parties whenever the matter in issue is substantially and
directly the same”.
The broad principles that emerges are as under:
(i) The parties are substantially the same.
(ii) Complete or even substantial and
sufficient similarity of the issues arising for decision in two suits.
(iii) Common evidence is to be led, if
parties are substantially the same, if only one party is common then burden of
proof of facts in issue will be on different person and no common evidence can
be led.
(iv) The consolidation in the
aforesaid circumstances will fulfill the object of consolidation. Any other
circumstances may be relevant then also the object of consolidation will be
decisive for passing appropriate order.
RES JUDICATA
&
APPLICABILITY OF ORDER 7 RULE 11 (d) of CPC
The aforesaid discussion may also lead to another
aspect i.e in case the suit is found to be not maintainable owing to the principles
of Res Judicata , whether the plaint
is liable to be rejected under the principles of Order VII Rule 11 (d) of Code
of Civil Procedure? The judgments of Supreme Court have already analysed this
aspect.
In V. Rajeshwari v. T.C. Saravanabava (2004)
1 SCC 551 the Supreme Court was pleased
to discuss the plea of res judicata and
the particulars that would be required to prove the plea. The Supreme Court
held that it is necessary to refer to
the copies of the pleadings, issues and the judgment of the ‘former suit’ while
adjudicating on the plea of res judicata:
“11. The rule of res judicata does not strike at the
root of the jurisdiction of the court trying the subsequent suit. It is a rule
of estoppel by judgment based on the public policy that there should be a
finality to litigation and no one should be vexed twice for the same cause.
13. Not only the plea has to be
taken, it has to be substantiated by producing the copies of the pleadings,
issues and judgment in the previous case. Maybe, in a given case only copy of judgment in previous suit
is filed in proof of plea of res
judicata and the judgment contains exhaustive or in requisite details
the statement of pleadings and the issues which may be taken as enough proof. But
as pointed out in Syed Mohd. Salie
Labbai v. Mohd. Hanifa [(1976)
4 SCC 780] the basic method to decide the question of res judicata is first to determine the case of the parties as
put forward in their respective pleadings of their previous suit and then to
find out as to what had been decided by the judgment which operates as res judicata. It is risky to
speculate about the pleadings merely by a summary of recitals of the
allegations made in the pleadings mentioned in the judgment. The Constitution
Bench in Gurbux Singh v. Bhooralal [AIR 1964 SC 1810 : (1964)
7 SCR 831] placing on a par the plea of res
judicata and the plea of estoppel under Order 2 Rule 2 of the Code of
Civil Procedure, held that proof of the plaint in the previous suit which is
set to create the bar, ought to be brought on record. The plea is basically
founded on the identity of the cause of action in the two suits and, therefore,
it is necessary for the defence which raises the bar to establish the cause of
action in the previous suit. Such pleas cannot be left to be determined by
mere speculation or inferring by a process of deduction what were the facts
stated in the previous pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore v. Secy. of State for India in Council [(1887-88)
15 IA 186 : ILR 16 Cal 173] pointed out that the plea of res judicata cannot be determined
without ascertaining what were the matters in issue in the previous suit and
what was heard and decided. Needless to say, these can be found out only by
looking into the pleadings, the issues and the judgment in the previous suit.”
In Soumitra Kumar Sen v. Shyamal Kumar Sen (2018) 5 SCC 644, the
Supreme Court has observed that a plaint could be rejected under Order 7 Rule
11 only if it was not maintainable on the basis of the averments contained in
the plaint and more often than not, such a determination would require the
production of pleadings, the issues framed and the judgment in the previous
suit, to compare it with the present suit and thus, principles of Order 7 Rule
11(d) of CPC may not be applicable. The application filed under Order 7 Rule
11(d) on the ground of res judicata could not be decided merely by
looking into the averments in the plaint.
In
a matter captioned as Srihari Hanumandas Totala Vs Hemant Vithal Kamat
& Ors Civil Appeal No 4665 2021, the Supreme Court has held as under:
(i)
To reject a plaint on the ground that
the suit is barred by any law, only the averments in the plaint will have to be referred to;
(ii) The defense made by the defendant
in the suit must not be considered while deciding the merits of the
application;
(ii) To determine whether a suit is barred by res
judicata, it is necessary that (i) the ‘previous suit’ is decided, (ii) the
issues in the subsequent suit were directly and substantially in issue in the
former suit; (iii) the former suit was between the same parties or parties
through whom they claim, litigating under the same title; and (iv) that these
issues were adjudicated and finally decided by a court competent to try the
subsequent suit; and
(iii)
Since an adjudication of the plea of res
judicata requires consideration of the pleadings, issues and decision in
the ‘previous suit’, such a plea will be beyond
the scope of Order 7 Rule 11 (d), where only the statements in the plaint will
have to be perused.
CONCLUSION
The discussion hereinabove has
been a complete reflection on principles of Res Sub Judice, Res Judicata,
principles of consolidation of suits as well as applicability of Order VII Rule
11 of Code of Civil Procedure in case of plea of Res Judicata.
--------------------------------
Anil
K Khaware
Founder &
Senior Associate
Societylawandjustice.com
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