CPC

Section 11 of the Civil procedure code is law on res judicata which infers the bar on the court to try any suit or proceedings in which matter which is directly and substantially in issue has also been directly and substantially in issue in the former suit and which has been finally heard and decided by the court of competent jurisdiction. Section 11 is appended with VIII explanations all has already been discussed in earlier blogs along with the controversy concerning section 11 and explanation VIII. When all the requisites of section 11 are substantiated, the plea of res judicata will oust the court’s jurisdiction to try the subsequent suit or proceeding. There are certain circumstances where plea res judicata is not considered in the subsequent suit which are as under. Following are exceptions of res judicata.

CONCLUSION:
The objective of both section 11 and the explanation VIII of section 11 of CPC is same that is to avoid multiplicity of proceedings and no man shall be vexed twice for the same offence moreover there must be an end to litigation. Therefore, the phrase “court of limited jurisdiction” in explanation VIII is wide enough to include court of limited pecuniary jurisdiction. It could be construed that even when a former court is not competent to try the subsequent issue due to lack of pecuniary jurisdiction res judicata will be operative irrespective of general rule that is administered in section 11.

Res judicata is applicable once the conditions stipulated under section 11 of CPC are established. Res judicata is not a bar on the party to initiate a proceeding against the other party in fact it precludes the court from trying any suit or an issue. Therefore, the res judicata is not applicable to the subsequent suit when the former is decided by the competent court in fact the same is applicable at the different stages of the same suit. Despite the operation of res judicata on all the civil suits and issues of the said suit, the question is whether the said principle is applicable in the case of public interest litigation and writs under Articles 32 and 226 of the Constitution of India and criminal proceedings.

This principle is based on 3 maxims:
a) Nemo debet bis vexari pro una et eadem causa- no man should be vexed twice for the same cause.
b) Interest reipublicate ut sit finis litium: it is in the interest of the state that there should be an end to a litigation.
c) Res judicata pro Veritate occipiture- a judicial decision must be accepted.

The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject-matter in both the suits is identical. The key words in Section 10 are “the matter in issue is directly and substantially in issue” in the previous instituted suit. The words “directly and substantially in issue” are used in contradistinction to the words “incidentally or collaterally in issue”. Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject-matter in both the proceedings is identical.

An application under order 7 rule 11 under CPC is filed by the defendant in a suit for the dismissal of the suit. Order 7 rule 11 also envisage the grounds for the dismissal of the suit. The one who is filing such application before court has burden of proof to establish and substantiate such ground for dismissal.

The present blog will emphasise a very captivating issue concerning the remedy in case of rejection of plaint or dismissal of application. Filing advocates often make mistakes when availing the remedy against the order of the court adjudicating the application under order 7 rule 11. What will be the remedy to the aggrieved party whose plaint has been rejected under order 7 rule 11? What remedy is available in case where an application under order 7 rule 11 is dismissed? Whether an aggrieved party can file a revision petition under Article 227 of the constitution of India? Whether the writ maintainable against the order of rejection of the plaint?

It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense….”

High court held that the trial court was not justified having allowed application for amendment under order 6 rule 17 while the relief for the rejection of plaint has been granted under order 7 rule 11 of CPC . Supreme court ratified the judgment of the High court and held that order of the trial court was not in consonance with law.