RES SUB JUDICE – SECTION 10 CPC

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EXCEPTION OF RES JUDICATA

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.

RUDUL SAH v/s STATE OF BIHAR AND ANOTHER

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NILABATI BEHERA vs. STATE OF ORISSA

The question for our consideration is whether in the exercise of its jurisdiction under Article 32, this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right?

APPLICATION UNDER ORDER 7 RULE 11CPC – SHOULD BE DECIDED FIRST

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EXCEPTION OF RES JUDICATA

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.

REJECTION OF PLAINT- REMEDY

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EXCEPTION OF RES JUDICATA

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?

SRIHARI HANUMANDAS TOTALA v/s HEMANT VITHAL KAMAT and OTHERS (Rejection of plaint and Res judicata)

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SRIHARI HANUMANDAS TOTALA v/s HEMANT VITHAL KAMAT and OTHERS .

The following issues were framed by the trial court: (in 2007 suit)

“1. Whether the description of suit property is correct?

2. Whether plaintiff proves that he has purchased suit property and he acquired valid title as pleaded?

3. Whether plaintiff is entitled for possession of suit property?

4. Whether Defendant 2 proves that KSFC had no authority to put the suit property     for sale?

5. Whether Defendant 2 proves that there is no cause of action for the suit?

6. Whether plaintiff is entitled for decree?

7. What decree or order.”?

HIGH COURT BAR ASSOCIATION ALLAHABAD V/s STATE OF UP and OTHERS (Automatic vacation of stay)

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NILABATI BEHERA vs. STATE OF ORISSA

Whether court can in exercise of its jurisdiction under article 142 of Constitution of India, can pass an order of automatic vacation of interim/stay orders of the High Courts of staying proceedings of civil or criminal cases on the expiry of certain period?

Whether this court under article 142 can direct the High courts to decide pending case in which interim order of stay of proceedings has been granted, on day-to-day basis and within a fixed period?

SUKHBIRI DEVI AND OTHERS v/s UNION OF INDIA AND OTHERS

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EXCEPTION OF RES JUDICATA

Whether the issue of limitation can be determined as a preliminary issue under Order XIV, Rule 2(2) of the Code of Civil Procedure (for short ‘CPC’)?

 Whether a larger period of limitation of 12 years would be available to the plaintiffs to bring in a suit by virtue of application of Article 136 of the Limitation Act, 1968 (for short ‘The Act’), as contended by the appellant and in the facts and circumstances obtained in this case?

 Whether Article 17 or Article 65 of the Act got any application, as contended by the appellants, in view of the plaint averments, in case Article 136 of the Act is found inapplicable?

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