Written by Ayesha Islam Kanta

Department of Law
Z. H. Sikder University of Science and Technology
1. Introduction
The subject of legal History comprises the growth, evolution and development of the legal system
of a country; it sets forth the historical process where by a legal system has come to be what it is
over time.The subordinate courts in Bangladesh are one of the two tiers of the court system in
Bangladesh and the other tier is the Supreme Court (which has been discussed earlier).The
subordinate courts are located in different districts and metropolitan areas across Bangladesh. All
the subordinate courts are under the authority or supervision of the Supreme Court of
Bangladesh that is, all the subordinate courts of Bangladesh are subservient or subjugated to the
Supreme Court of Bangladesh. There are a wide variety of subordinate courts, such courts are
the creatures of statutes. Their powers, Functions and jurisdictions are also determined by the
respective statutes.

2. Code of Civil Procedure

Structure of Civil Courts and Jurisdiction
Section 3 of the Civil Courts Act, 1887 as amended by the Civil Courts Act 2001, provides for
following classes of Civil Courts, namely
Appellate Division

The Supreme Court

High Court Division

The District Judge Court

The Additional District Judge Court

The District Court

The Joint District Judge Court

 The Senior Assistant Judge Court

The Assistant Judge Court
The Small Cause Court
The Family Court
The Revenue Court
Jurisdiction of the Civil Courts: There are various types of jurisdiction of the Civil Courts in
Bangladesh, namely

(1) Pecuniary Jurisdiction

(2) Jurisdiction of Subject-matter
(3) Territorial Jurisdiction
(4) Original Jurisdiction
(5) Appellate Jurisdiction
(6) Review Jurisdiction
(7) Reference Jurisdiction
(8) Revision Jurisdiction
(9) Writ Jurisdiction
(10) Inherent Jurisdiction
(11) Supervisory Jurisdiction
(12) Superintendence Jurisdiction
(13) Jurisdiction to transfer or withdrawal of suits
(14) Exclusive and concurrent Jurisdiction
(15) Legal Jurisdiction
(16) Equitable Jurisdiction
(17) Domestic and foreign jurisdiction
(18) General and special Jurisdiction
(19) Municipal and foreign jurisdiction
(20) Expounding and expanding jurisdiction

3. Pecuniary Jurisdiction:
The Assistant Judge Court, the Senior Assistant Judge Court, and the Joint District Judge Court
are barred by the pecuniary jurisdiction.
The Assistant Judge Court may not take any suit of value (TK. One to Two Lac).
 The Senior Assistant Judge Court may not take any suit of value (TK. Two Lac one to
Four Lac).
The Joint District Judge Court may take any suit of value (TK. Above 4 Lac one to
).
It is an established rule that every suit of every value firstly has to be instituted in the lower
grade court of its jurisdiction.

4. Jurisdiction of subject-matter

The Civil court may take every suit of Civil nature and the other cases which are not
specifically declared as criminal nature.

5. Territorial Jurisdiction
Where the subject matter of the Civil suit is an immovable property, then in which jurisdiction
of district it as situated, the suit must be instituted in the district Courts at the district.
If the Immovable property is situated between the middle of two or more districts the suit may
be institute at any of the district Courts of such districts.
If the Movable property is situated in such a manner it is impossible to identify where districts
part it is in the suit may be instituted at any district court of any district nearest it.
If the subject matter of the suit is movable property the suit may be instituted in the following
any district court of nay district
a. Where the cause of action arise
b. The residence of the defendant
c. The residence of the plaintiff

6. Original Jurisdiction
The Assistant Judge Court, The Senior Assistant Judge Court, The Joint District Judge Court
and The High Court Division of Supreme Court has original jurisdiction because only they can
take a fresh suit.

7. Appellate Jurisdiction:
The Additional District Judge Court, The District Judge Court, The High Court Division of
Supreme Court and Appellate division of Supreme Court has appellate jurisdiction, because
they can take appeal from their subordinate Courts.

8. Reference Jurisdiction:
Reference is excusive jurisdiction of the High Court Division. It normally means referring to
a case to the High Court Division for its opinion and order.
Section 113 of the CPC provides that any court may state a case and refer the same for the
opinion of the High Court Division, and the High Court Division may make such order there
on as it my think fit.

Conditions of Civil revision are that-

I. Only a court can make reference to the High Court Division.
II. Reference is to be made only when an important issue of law has arisen.
III. The power of reference by the High Court Division is discretionary.

9. Revision Jurisdiction:
Revision is a purely discretionary remedy granted by a higher court with a view to correcting
miscarriage of justice.

Under section 115 of the CPC (as amended in 2003) Civil Revisional power can be exercised
by the High Court Division and The District Judge.
This power is also called supervisory power or power to do complete justice or power to call
for records. Exercise of this power can be only at the instance of a party. Previously this power
could have been exercised sue notice by the High Court Division.
Normally questions of facts are not considered by a court under its revision jurisdiction. [15
BLD 196]
A revision is not a continuation of the original preceding like an appeal. [22 DLR 192]
Circumstances Review is possible almost in every judicial organ. It is done by the same court
which gave the order or judgment against which review is sought for. Section 114 of the CPC
provides that it a person is aggrieved

1. By a decree or order from which an appeal is allowed but no appeal has been
preferred.
2. By a decree or order from which no appeal is allowed
3. By a decision or a reference from a court of small causes

May apply for a review of judgment to the court which passed by the decree or made the order
and the court may make such order thereon as it thinks fit.

10. Review Jurisdiction:

Review means a judicial re-examination of a case in certain specified and prescribed.

11. Writ Jurisdiction:

Writ Jurisdiction means the power and Jurisdiction of The High Court Division (HCD) under
the provision of the Constitution whereby it can enforce fundamental rights as guaranteed in
the Constitution. The basis of writ Jurisdiction is Article 102 of The Constitution.

12. Inherent Jurisdiction (Discretionary Power ):

Inherent Jurisdiction is one of the vital and extraordinary powers of the Civil court. All Civil
court from Appellate division to Assistant Judge may exercise this power at any time of a suit.
Basically it is the discretionary power of the judges which depends on the satisfaction of the
judges and regulated by under section 151 of the Code of Civil Procedure 1908.

13. Supervisory Jurisdiction

Supervisory power of the High Court Division (HCD) includes the control exercised by this
Courts as to prohibit the subordinate Courts from acting extra jurisdictionally and reverse its
acting extra jurisdictionally acts Article 109 of our Constitution recognizes such power of the
High Court Division (HCD).

14. Superintendence Jurisdiction

 According to section 9 of the Civil Courts Act 1887, The District Judge shall have
administrative control over all the Civil Courts under this Act within the local limits of his
Jurisdiction subject to the Superintendence of theHigh Court Division (HCD).

15. Jurisdiction to transfer or withdrawal of suits

According to section 24 of the CPC the District Judge may, on the application of any part
of suo motu, at any stage-
Transfer any suit, appeal or other proceeding pending before if for trial or disposal to
any Court Subordinate to it
Withdraw any suit of appeal of other proceeding pending in any subordinate court and
transfer the same for trial or disposal to any court subordinate to it
Retransfer the same for trial or disposal to the court from which it was withdrawn.

Note:-

Double Capacity: The District Judges have Double Capacity. Sometimes, every District Judge
is appointed as a Session Judge as well, to adjudicate Criminal matters in any Sessions
Division.

16. Enclusive and concurrent jurisdiction:

The idea of exclusive jurisdiction has been formulated as the opposing principle to that of
concurrent jurisdiction if refers to the solely held ability of a court to scur rulings some legal
matter and to block or their courts from doing so. On the otterhound, the concurrent jurisdiction
concept allows for a single legal matter to come under then one judicial decision making body.
so a different courts will have the same jurisdiction over the same subject matter at the sometime
under this jurisdiction.

17. Legal Jurisdiction:

This jurisdiction is enerised by common law courts.

 18. Equitable Jurisdiction:

This Jurisdiction is enercised by equity courts.

19. Domestic and foreign jurisdiction:

Domestic jurisdiction is exercised by a court in a country. On the or there hand foreign

jurisdiction is exercised by a court in a forging country.

20. General and special jurisdiction:

General Jurisdiction intends to all cases comprised within a class or classes of causes special or,
limited jurisdiction, on the or there hand is jurisdiction which is confined to special. Particular or
limited causes.

21. Municipal and foreign jurisdiction:

Municipal or domestic jurisdiction is a jurisdiction exercised by municipal courts, i, d, courts in a

country.

22. Expounding and expanding jurisdiction:

Impounding jurisdiction means to define, clarify and explain jurisdiction. Expanding jurisdiction
means to expand, enlarge or extend the jurisdiction. It is the duty of the court to expound its
jurisdiction. It is, however, not proper for the court to expand its jurisdiction.
23. General principles regarding jurisdiction:

There are following general principles regarding jurisdiction of civil court

a) civil courts have jurisdiction to try any suit of civil nature enact where its cognizance is abrade
either expressly or impliedly.

b) If any civil court passed any decree without jurisdiction, the validity of such decree can be
challenged at any stage of the proceedings, in evection proceeding or ever in collateral
proceedings

24. Inclusive and concurrent jurisdiction:

The idea of inclusive jurisdiction has been formulated as the apposing principle to that of
concurrent jurisdiction if refers to the solely held ability of a court to scurf rulings a some legal
matter and to block or ther courts from doing so. On the urethane the concurrent jurisdiction
concept allows for a single legal matter to come under then one judicial decision making body.
so a different courts will have the same jurisdiction over the same subject matter at the some time
under this jurisdiction.

25. Domestic and foreign jurisdiction:

Domestic jurisdiction is exercised by a court in a country. On the or there hand foreign

jurisdiction is exercised by a court in a forging country.

26. General and special jurisdiction:

General Jurisdiction intends to all cases comprised within a class or classes of causes special or,
limited jurisdiction, on the or there hand is jurisdiction which is confined to special. Particular or
limited causes.

27. Municipal and foreign jurisdiction:

Municipal or domestic jurisdiction is a jurisdiction exercised by municipal courts, i, d, courts in a
country.

Impounding jurisdiction means to define, clarify and explain jurisdiction. Expanding jurisdiction
means to expand, enlarge or extend the jurisdiction. It is the duty of the court to expound its
jurisdiction. It is, however, not proper for the court to expand its jurisdiction.

28. Differences between Appeal and Revision Jurisdiction: 1

Differences between Appeal and Revision may briefly be stated is follows:

(1) Appeal is a legal right of a party but revision depends on the discretion of the Court, therefore
it cannot be claimed as a matter of right.
(2) An appeal may lie on the point of law as well as on facts but a revision generally lies on the
question of law only.
(3) In case of appeal, the appellant is heard, but it is not necessary in case of a revision petition.
(4) In case of appeal, the Appellate Court can neither increase the sentence nor pardon the
appellant but both these are possible in case of revision.
(5) In appeal, the higher court may convert discharge of the accused into his conviction but this
cannot be done in case of revision.
(6) The courts have extensive powers of interference in criminal appeals but the power of courts
is very limited in revision.
(7) There is only one procedure involved in appeal but there are two procedures involved in case
of revision, i.e., preliminary and final.

29. Difference between writ and appeal Jurisdiction:2

Writs usually are considered to be extraordinary remedies, meaning they are permitted only when
the defendant has no other adequate remedy, such as an appeal. In other words, a defendant may
take a writ to contest a point that the defendant is not entitled to raise on appeal. As a general

1 C.K. Takwani: Civil Procedure with Limitation Act, 1963, Ed. 7th.p.44
2
 rule, this applies to issues that are not apparent in the record of the case itself (such as when an
attorney fails to investigate a possible defense).

Any one of the following reasons, for example, may prohibit an appeal (and justify a writ):

The defense did not lodge a timely objection at the time of the alleged injustice (but
should have).

A final judgment has not yet been entered in the trial court, but the party seeking the writ
needs relief at once to prevent an injustice or unnecessary expense.

The matter is urgent. (Writs are heard more quickly than appeals, so defendants who feel
wronged by actions of the trial judge may need to take a writ to obtain an early review by a
higher court.)

The defendant has already lodged an unsuccessful appeal (defendants may file multiple
writs but the right to appeal is limited to one). But filing a writ that simply mimics an
unsuccessful appeal is a frivolous writ and will be dismissed immediately.

30. Conclusion

The High Court Division of the Supreme Court of Bangladesh shall have such original,
appellate and other jurisdictions and powers as are conferred on it by this constitution or any
other Law. The appellate and revision Jurisdiction of this Division is conferred by the Code of
Civil Procedure, the Code of Criminal Procedure and Some other special laws. This Division
shall have superintendence and control over all courts subordinate to it, and the law declared
by that division shall be binding on a courts subordinate to it. The High Court Division has
limited Original jurisdiction only in the matter of company, admiralty and writ or
Constitutional Matters. If the fundamental rights of any person are violated then he is entitled
to get legal remedy under the writ jurisdiction of the High Court Division of The Supreme
Court by issuing writ.
 Res sub-judice and Res judicata

Introduction
Section-10 deals with the doctrine of res sub-judice and Section-11 deals with the doctrine of res
judicata. Section 10 provides the rule with regard to stay of suits where things are under
consideration or pending adjudication by a court. On the other hand, section-11provides rule
relates to a matter already adjudicated. It bars the trial of a suit or an issue in which the matter
directly and substantially in issue has been adjudicated upon in a former suit. Sections 10 an
11are mandatory.

Meaning and Definition Res sub-judice

Subjudice in Latin means under judgment'. It denotes that a matter or case is being considered
by court or judge. When two or more case are filed between the same parties on the same subject
matter, the competent court has power to stay proceedings. However, the doctrine of res
subjudice means stay of suit.
Code of Civil Procedure provides rules for the civil court in respect of the doctrine of res
subjudice. This rule applies to trial of a suit not the institution thereof.
According to section 10, of the Code of Civil Procedure, 1908
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 Bangladesh having jurisdiction to grant the relief claimed, or in
any court beyond the limits of Bangladesh established or continued by the Government and
having like jurisdiction, or before the supreme court.
The stay must be of the latter suit and not of the earlier suit between the same parties. The does
not include an application for leave to appeal.

Nature and scope

Section 10 declares that no court should proceed with the trial of any suit in which the matter in
issue is directly and substantially in issue in a previously instituted suit between the same parties
and the court before which the previously instituted suit is pending is competent to grant the
relief sought. The rule applies to trial of a suit and not the institution thereof. It also does not
preclude a court from passing interim orders, such as, grant of injunction or stay, appointment of
receiver, etc. It however, applies to appeals and revisions.

Object of Res sub-judice

The object of the rule contained in section 10 is to prevent court of concurrent jurisdiction from
simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same
cause of action, the same subject matter and the same relief. The policy of law is to confine a
plaintiff to one litigation, thus obviating the possibility of two contradictory verdicts by one and
the same court in respect of the same relief.

Conditions of Res sub-judice:

In order to attract the application of this section it is necessary that the following conditions must
be fulfilled:
(a)There must be two suits one previously instituted and the other subsequently instituted.
(b)The matter in issue in the subsequent suit must be directly and substantially in issue in the
previous suit.
(c)Both the suits must be between the same parties or their representatives.
(d)The previously instituted suit must be pending in the same court in which the subsequent suit
is brought or in any other court in Bangladesh or in any court beyond the limits of Bangladesh
established or continued by the Government or before the supreme court.
(e)The court in which the previous suit is instituted must have jurisdictions to grant the relief
claimed in the subsequent suit.
(f)Such parties must be litigation under the same title in both the suit.
If these essential conditions are fulfilled, the subsequent suit must be stayed by the court where it
is pending. It must be remembered that the institution of the subsequent suit is not barred but its
trial only. The final decision of the former suit shall operate as res judicata in the subsequent suit.

Purposes of Res sub-judice:

The section 10 intends to protect a person from multiplicity of proceedings and to avoid a
conflict of decision. It also protects the litigant people from unnecessary harassment. It also aims
to avert (avoid) inconvenience to the parties and gives effect to the rule of res judicata.

Res Sub-judice when not apply

Court cannot apply this section where point at issues are distinct and different,67 or even
where there are some issues in common and others are different issues'68 This section is also
not applicable between the suits where although the parties are same' but the issues are not the
same.

Inherent Power to stay

Court may use its inherent power to stay of suit' Although the provision of section 10 is
mandatory' but this provision has not taken away the court's inherent power under 151 so as to
stay the proceedings on the facts and circumstances of a given case to secure the ends of
justice where section 10 is not applicable. Therefore, court may use its inherent power to
secure the ends of Gil" when section-10 is not applicable' even to prevent abuse of court, court
may stay former suit by applying its inherent Power.

Meaning and Definition of Res judicata

Res judicata is a Latin expression or term that means matter once adjudicated, cannot be re-
adjudicated. The doctrine of res judicata technically means that a matter is issue which has
already been tried by competent court, then trial between the same parties in respect of the same
matter shall not be allowed. It is a very important doctrine in civil justice system, it emphasis that
a subject matter of the suit which has already been decided, is deemed to be decided forever, and
cannot be reopened by the same parties.
The rule of res judicata is based upon the principle that no person should be vexed twice for the
same cause of action. Our constitution provided that no one should be vexed twice. Similar
doctrine also can be found under provisions of the Code of Criminal procedure, 1898.In criminal
justice system this doctrine is called double jeopardy.
The General Clauses Act,1897 also provided similar provision, as follows, where an act or
omission constitutes an offence under two or more enactments, then the offender shall be liable
to be prosecuted and punished under either or any of those enactments, but shall not be liable to
be punished twice for the same offence.

History of Res judicata

The rule of res judicata has a very ancient history. It was well understood by Hindu lawyers and
Mohammedan jurists. It was known to ancient Hindu Law as Purva Nyaya (former judgment).
Under the Roman Law, it was recognized that one suit and one decision was enough for any
single dispute. The doctrine was accepted in the European continent and in the common wealth
countries. At times, the rule worked harshly on individuals. For instance, when the former
decision was obviously erroneous. But its working was just tified on the great principle of public
policy, which required that there must be an end to every litigation. The basis of the doctrine of
rse judicata is public interest and not absolute justice. In the event of a wrong decision, the
suffering citizen must appeal to the law -given and not to the lawyer.

Nature and scope

The doctrine of res judicata is conceived in the larger public interest which requires that all
litigation must, sooner than latter, come to end. The principle is also founded on justice, equity
and good conscience which require that a party who has once succeeded on an issue should not
be harassed by multiplicity of proceedings involving the same issue. Section 11of the code
contains in statutory principle of public policy. It embodies the rule of conclusiveness and
operates as a bar to try the same issue once again. It there by avoids vexatious litigation.

Object of Res judicata

The doctrine of res judicata is based on three maxims:
(a) nemo dedet bis vexari prounaet eadem causa that means no man should be vexed twice for
the same cause);
(b) interest reipublicae ut sit finis lithium that means it is in the interest of the state that there
should be an end to a litigation);
(c) res judicata pro veritate occipitur that means a judicata decision must be accepted as correct;
Condition of res judicata
For applicability of res judicata the following conditions must be satisfied to the court
(a) the matter directly and substantially in issue in the subsequent suit or issue must be the same
matter which was directly and substantially in issue either actually or constructively,
(b) the former suit must have been a suit between the same parties or between parties under
whom they or any of them claim
(c) such parties must have been litigation under the same title in the former suit.
(d) the court which decided the former suit must be a competent court to try the subsequent suit
or the suit in which such issue is subsequently raised.
(e) the matter should have been decided on merits and final decision should have been made after
hearing.

Purposes of res judicata

The doctrine of res-judicata is based upon there Roman maxims namely, nemo debet bis vexari
prounet eadem causa, means no man should be vexed twice over for the same cause of action
and interest republicae ut sit finis litium, means it is to the interest of the state that there should
be an end to litigation. The first maxim looks to the interest of the litigant, who should be
protected from a vaxatious multiplicity of suits. The section maxim is based on the ground of
public policy that there should be an end to litigation. The third number maxim is res judicata
pro veritate occipitur means a judicial decision must be accepted as correct. This maxim is also
based on public policy.

Extent and applicability

The doctrine of res judicata is a fundamental concept based on public policy and private interest.
It is conceived in the larger public interest which requires that every litigation must come to an
end. It, therefore, applies to civil suit, execution proceedings, arbitration proceedings, taxation
matters, industrial adjudication, writ petitions, administrative order, interin orders, criminal
proceedings, etc.

Res judicata and rule of law

The doctrine of res judicata is of universal application. In the historic decision of the Supreme
court has placed the doctrine of res judicata on a still broader foundation. In that case, the
petitioners had filed writ petitions in the High court of Allahabad under Article 226 of the
constitution and they were dismissed. There after, they filled substantive petitions in the Supreme
court under Article 32of the constitution for the same relief and on the same grounds.
Kinds of res judicata
Res judicata can be classified into two-
a. Direct res judicata
b. Constructive Res judicata

a. Direct res judicata

It means a matter actually resolved by court, between the parties in earlier suit cannot by
reopened through subsequent suit. Explanation 3 deals with the direct res judicata. It provides
that the matter above referred to must in the foraler suit have been alleged by one part and either
denied or admitted, expressly or impliedly by the other.

b. Constructive Res judicata

It is the interest of justice that a party should bring forward his whole case in respect of the
matter in suit. Constructive res judicata means a matter which might and light to have been made
ground of claim or defense in a former suit, but a party ignores it,then the issue shall be demed to
have been a matter directly and substantially in issue in such suit, in other words if a party had an
opportunity that he ought to have taken a plea as a plaintitf or defendant, if he fails to do so, and
the matter is decided the decision will operate as res judicata in respect of all issues, which were
taken and which ought and might have taken and second suit would not lie for such issue.

Foreign judgment and res-judicata

Section 13 provide that a foreign judgment shall be conclusive as to any matter there by directly
adjudicated upon between the same parties or between parties under whom they or any of them
claim litigating under the same title, where it has been pronounced by a court of competent
jurisdiction. So if a foreign judgment is delivered on merits by a court of complete jurisdiction in
the matter, if would operate as res judicata.

Difference between res judicata and res sub-judice

There are following three most important difference between res-subjudice and res judicata-
(a) Res sub-judice relates to matter pending judicial equity or trial sub judice.
Whereas, res-judicata relates to a matter already adjudicata or matter in which decision is
already there.
 (b) Res sub-judice bars the trial of a suit which the matter directly and substantially in issue is
pending adjudication in a previously instituted suit.
Whereas, res-judicata; bars the trial of a suit or on issue in which the matter directly and
substantially in issue has already been adjudicated upon in a previous suit.

(c) Section 11 deals with res judicata.

Whereas, section 10 deals with res-subjudice.

Res judicata between co-plaintiffs and co-defendants

The principle of res judicata applies between co-defendants and also co-plaintiffs. The rule of res
judicata applies in a case of co-defendants, if the following conditions are satisfied.
(a) There must be conflict of interest between defendants concerned.
(b) It must be necessary to decide the conflict in order to give the relief which plaintiff claims.
(c) The co-defendants must be necessary or proper parties to the suit.
(d)The questions or disputes between the co-defendants must have been finally decided inter see
between them.

Example:
A sues B, C and D' and in order to decide a claim of the court has to interpret a will. The
decision regarding interpretation of the will. Operate as res judicata in any subsequent suit by
any of the defendants against the rest. Rule of res judicata shall also be applicable between co-
plaintiffs. The rule of res judicata applies in a case of co-plaintiffs, if the following conditions are
satisfied.

(a) There must be a conflict of interest between the co-plaintiffs.

(b) It must be necessary to decided such conflicts, in order to give relief to the plaintiff.
(c) The questions between the plaintiffs to be finally decided.

Res judicata and Estoppel

Res judicata corresponds to the part of the doctrines of estoppel which is known as estoppel by
record section 115 of the Evidence Act deals with the doctrine of estoppel. The doctrine of res
judicata can be distinguished from estoppel on the following grounds:
(a)Res judicata is estoppel by record. This rule is based upon public policy that litigation should
end.
Whereas, estoppel is part of law of evidence, where a person cannot charge his stance once
taken.
(b)Res judicata prevents someone from saying same thing in different litigation while, estoppel
stops him from saying different things at different times either in the same, suit or different suit.
(c)Res judicata bars the trial itself, whereas, estoppel only stops a certain piece of evidence from
being taken on record when the trial continues.
(d)Res judicata is reciprocal and bind the parties, while estoppel binds the party who made the
previous statement or showed the previous conduce.
(e)Res judicata ousts the jurisdiction the court, whereas, estoppel stops the mouth a party.
(f)The doctrine of res judicata results from a decision of the court, while estoppel results from
the acts of the parties themselves.
(g)Res judicata presumes conclusively the truth of the former decision, whereas, estoppel
prevents someone from asserting a new truth.

Res judicata and lis pendens:

The doctrine of lis pendens is only one aspect of the principles of res judicata and where a
conflict arises between lis pendes and res judicata in any case the latter prevails.

Res judicata and splitting of claims

The doctrine of res judicata also differs from order 2Rule 2 of the Code firstly, the former refers
to a plaintiffs duty to bring forward all the grounds of attack in support of his claim, while the
latter only requires a plaintiff to claim all reliefs flowing from the same cause of action.
Secondly, while the former rule refers to both the parties, plaintiff as well as defendant, and
precludes a suit as well as a defense, the latter refers only to a plaintiff and bars a suit.

Res judicata whether technical

No doubt, the rule of res judicata has some technical aspects. For instance, the rule of
constructive res judicata is really technical in nature. Similarly, pecuniary or subjectwise
competence of the earlier forum to adjudicate the subject matter or grant reliefs sought in
subsequent litigation can be said to be technical. But the principle on which the doctrine is
founded rests on public policy and public interest.
Waiver
The plea of res judicata is not one which affects the jurisdiction of the court. The doctrine of res
judicata belongs to the domain of procedure and the party may waive the plea of res judicata
similarly, the court may decline to go into the question of res judicata on the ground that it has
not been properly raised in the proceedings or in issues. The plea is one which could be waived.

Interpretation
The doctrine of res judicata should be interpreted and applied liberally. Since the rule is founded
on high public policy and upon the need of giving finality to judicial decisions, a strict and
technical constitution should not be adopted. In deciding whether the doctrine would apply, its
substance and not the form should be considered.

Litigating under the same title

The test of res judicata is the identity of title in the two litigations and not the identity of the
actual property involved in the two cases. The words litigating under the same title mean in the
same right or capacity and do not refer to the identity of the ground of action. The words mean
that the demand should have been of the same quality in the latter suit as in the earlier suit.

Heard and finally decided

Before a decision in the former suit may constitute res judicata, it must have been head and
finally decided. A matter, which though in issue, was not heard and decided either actually or
constructively, cannot be res judicata for the purpose of subsequent proceedings. Where a matter
was decided by the lower court, but was left undecided by the appellate court, the result wound
be the same. In order to operate as res judicata a finding must be one which was necessary for the
disposal of the suit. Thus neither an obiter dictum nor a mere expression of opinion in a
judgment has the effect of res judicata. A decision that execution of a decree is barred under a
law is not res judicata for all times to come; the bar be got over under changed circumstance.

Res Judicata and Public Interest Litigation

Even in a public interest litigation procedural law is applicable though not strictly. Hence, the
principle of res judicata is also applicable. Where the prior public interest litigation relates tom
illegal mining, subsequent public interest litigation to protect environment is not barred.

In Rural Litigation and Entitlement Kendra v. State of U.P. it was held on this aspect:
The writ petitions before us are not inter-party disputes and have been raised by way of public
interest litigation and the controversy before the court is as to whether for social safety and for
creating a hazardless environment for the people to live in, mining in the area should be
permitted or stopped. We may not be taken to have said that for public interest litigations,
procedural laws do not apply. At the same time, it has to be remembered that every technicality
in the procedural law is not available as a defense when a matter of grave public importance is
for consideration before the court.

Applicability of Constructive res Judicata in Writ Petition

The question arose for the first time before the Supreme Court in Amalgamated Coalfields Ltd.
V. Janapada Sabha, AIR 1964 SC 1013, whether the concept of constructive res judicata can be
applied in writ petition or not.
In Devilal Modi V. STO, AIR 1965 SC 1153, Supreme Court clarified the stand and said the
principle of constructive res judicata also applies in writ petition. A direct question, however
arose before the Supreme Court in State of U.P. V. Nawab Hussain, AIR 1977 SC 1680, the Court
held that principle of constructive res judicata is applicable.

It should be noted that the principle of res judicata and constructive res judicata are held not
applicable in Habeas Corpus Petition by Supreme Court in Ghulam Sarwar V. Union of India,
AIR 1967 SC 1335 and in Lallubhai V. Union of India, AIR 1981 SC 728, respectively.

Exparte decree and res-judicata

Where the plaintiff appears and the defendant does not appear, then the suit is called on for
hearing, then if it is proved that the summons was duly served, the court may proceed ex parte.
An exparte decree passed by a competent court on merits will operate as res judicata, because the
effect of exparte decree as like as by-parte decree. But the doctrine of res judicata does not apply
to a consent decree, because in a consent decree a matter cannot be said to be heard and finally
decided on merits. the decision in the former suit will operate as res judicata though the suit
decreed exparte.

Res judicata between co plaintiffs

Just as a matter may be res judicata between co-defendants, so also it may be res judicata
between co-plaintiffs, if there is a conflict of interest between plaintiffs and it is necessary to
resolve the same by a court in order to give relief to a defendant, and the matter is in fact
decided, it will open as res judicata between co-plaintiffs in the subsequent suit.
Res judicata between co-defendants

As a matter may be res judicata between a plaintiff and a defendant, similarly, it may be res
judicata between co-defendants and co-plaintiffs also. Adjudication will operate as res judicata
between co-defendants if the following conditions are satisfied.

There must be a conflict of interest between co-defendants.

It must be necessary to decide that conflict in order to give relief to the plaintiff.
The question between co-defendants must have been finally decided, and
The co-defendants were necessary or proper parties in the former suit.

If the conditions are satisfied, the adjudication will operate as res judicata between co
defendants.

Reference

1. Mahmudul Islam The Law of Civil Procedure,

2. Abdul Halim, Text Book on Civil Procedure

3. Hand Book On Code of Civil Procedure, Mahamud Wazed

4. C . K. Takwani, Civil Procedure, 7th edition