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What is Res Sub Judice & What is Res judicata?
Section 10. Stay of suit:
"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."
Explanation: The awaiting settlement of a suit in a foreign Court does not prevent the court in Bangladesh from trying a suit founded on the same cause of action.
What is Res Sub Judice?
Sub Judice is a Latin term which has the meaning of "Under Judgement". It indicates that a matter or case is being considered by Court or Judge.
Explanation of Res Sub Judice
The awaiting settlement of a suit in a foreign Court
✓ does not prevent the Court in Bangladesh
✓ from adjudicating a suit founded on the same cause of action.
Conditions of Res Sub Judice:
However, this section can only be applied if the following condition are met. These are:
✓Two suits - Previously Instituted and Subsequently Instituted.
✓Matter in issue in subsequent suit - directly and substantially in issue in previous suit.
✓Both suits between same parties or their representatives.
✓Previous suit must be awaiting settlement in same or in any other Court.
✓The Court dealing with previously instituted suit capable to grant relief claimed in subsequent suit
✓ Parties involved in lawsuit under the same titles in both the suit.
Example of Res Sub Judice:
Wife A litigated for separation of conjugal life and custody of minor child against husband B. Afterwards husband B demanded custody of minor child by filling another suit against wife A. The second suit is to be stayed under section 10 of CPC, 1908.
Purpose of Res Sub Judice:
✓Avoid wasting Court resources
✓Avoid conflicting decisions
✓Avoid multiplicity of suit
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 a former suit between the same parties, or parties 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 subsequently raised, and has been heard and finally decided by such court."
Explanation I: The expression "former suit" shall indicate a suit which has been settled prior to the suit in question whether or not it was instituted prior thereto.
Explanation II: For the purpose of this section, the capability of a court shall be affirmed irrespective of any provisions as to a right to appeal from the decision of such Court.
Explanation III: The matter above referred to must in the former litigation have been submitted by one party and either denied or admitted, expressly or impliedly by the other.
Explanation IV: Any matter, which might and ought to have been made reason of defence or attack in such former suit shall be deemed to have been a matter directly and significantly in issue in such suit.
Explanation V: Any relief demanded in the plaint, which not directly granted by the decree, shall, for the determination of this section, be deemed to have been refused.
Explanation VI: Where persons file lawsuit bona fide in respect of a public right or of a private right asserted in common for themselves and others, all persons concerned in such right shall, for the determination of this section, be deemed to claim under the persons so litigating.
What is Res judicata?
Res judicata is a Latin expression or term that has the meaning of matter once adjudicated, cannot be re-adjudicated.
No Court shall entertain any suit or issue
✓in which the matter directly and significantly in issue
✓in a former suit between the same parties having a lawsuit under the same title,
✓in a Court capable to try such subsequent suit and
✓ has been heard and finally settled by such Court.
Example of Res-judicata:
A files a suit against B for damages for breach of contract. The suit is put away. A later on filed another suit against B for damages for breach of the same contract. The later suit shall be barred by the principle of res-judicata, because B shall not be annoyed twice over for the same cause.
Three maxims on which the doctrine of Res judicata are based on:
1. Nemo debet bis vexari pro una et eadem causa
✓no man should be penalized twice for the same cause
2. Interest reipublicae ut sit finis litium
✓it is in the interest of the state that there should be end to a legal action.
3. Res judicata pro veritate occipitur
✓a judicial decision must be recognized as correct.
Conditions of Res judicata:
✓the matter directly and significantly in issue in the subsequent suit & former suit.
✓ Parties of former suit & subsequent suit must be identical.
✓ The Court which decided the former suit must be a court having jurisdiction.
✓ The matter should have been settled on merits and final decision should have been made after hearing.
Purposes of Res judicata
The main focuses of the res-judicata are to prevent-
✓ injustice to the parties of a settled suit;
✓ needless waste of court resources,
✓multiplicity of suit
✓recovery of compensation from the defendant twice for the same injury.
Kinds of Res judicata
Res - judicata is of two kinds-
1. Direct Res judicata
2. Constructive Res judicata