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Res-subjudice & Res judicata
Question a) What do you understand by res-subjudice and res judicata? When a suit pending before a court can be stayed?
Answer:
Res-subjudice:
Res-subjudice means to stay a new suit the subject-matter of which is already pending in Court The Latin word res means matter and sub-judice means under trial. Therefore, the word res-subjudice means matter under trial. S 10 of the Code of Civil Procedure discusses with the doctrine of res-subjudice. The question of stay of trial of a suit may be raised in any special case, after the filing of the suit. Section 10 of the Code of Civil Procedure describes under what circumstances the trial of suit may be stayed. According to s 10 of the Code of Civil Procedure, where the parties and the sbject-matter of a previously instituted suit and the parties and the subject-matter of a sbsequently instituted suit are the same, the court my stay the subsequently instituted suit. However, if the previously instituted suit is filed before a foreign court, although the subject matter of the suit are the same, the later suit can be filed before Bangladeshi court without any bar.
Example: A the wife files a suit for divorce and the custody of the minor child against the husband, B Later, B sues for the guardianship of the minor child. The later suit of B shall be stayed.
Res judicata:
The Latin word res means matter and judicata means already decided. So res judicata means matter already decided. S. 11 of the Code of Civil Procedure discusses with this doctrine if any suit already decided by a competent court, and later another suit on the same subject matter and between the same parties is filed, the court shall not try the later suit, this principle is called res judicata. Therefore, suit already decided cannot be revived again. Therefore, where the trial has been once made, if again it is instituted, the doctrine of res jadicata shall be applied. The court in Alom vs. Salimullah Chowdhury , 10 MLR (AD) 90 has decided that s. 11 of the Code of Civil Procedure bars to try a suit twice.
Example: A sues for declaration of title against B. Court gives judgment in favor of B. Now, if A again sues against B for the same cause, the court shall stay the suit. Because, the subject-matter and the parties of both the suits are same.
In which situation a pending civil suit can be stayed?
The following conditions are to be fulfilled to stay a suit u/s. 10 of the Code of Civil Procedure:
1. Two suits:
There shall two suits one of which shall be previously instituted and the other shall be subsequently instituted.
2. Facts in issue:
The subject-matter of the previously and subsequently instituted suits shall be the same.
3. Same jurisdiction:
The court in which the first suit has been filed shall have the jurisdiction to give relief in the subsequent suit.
4. Same parties:
The parties of both the suits shall be the same.
5. Suit on same title:
The parties sue on the same title.
6. Suit pending in a court:
The previous suit is pending before a competent Bangladeshi or a foreign court established by the Govt. In Md. Baker Siddique vs. Tamizuddin Khan, 27 BLD 57, it was held that, if the abovementioned conditions are not fulfilled, the court shall not order to stay a suit under section 10 of the Code of Civil Procedure. However, if the conditions are fulfilled, the court may order to stay the suit. In Ayat Ali Bhuiya vs, Janata Bank, 40 DLR 56, the court held that, if the court fails to file a suit u/s. 10 of the Code of Civil Procedure, it can order for stay u/s 151 of the Code. If the abovementioned conditions are fulfilled, the civil court may stay the subsequent suit.
Question: What is the difference between res-judicata and admissions? Does an ex-parte decree act as res judicata?
Answer:
The differences between res judicata and admission are:
As to definition:
Where the suit have been conclusively determined by the court, and if later another suit is filed on the same subject-matter and between the same parties, the court shall not try such suit- this doctrine is called res judicata. Admission means, any statement which may be oral or documentary. Such oral or documentary statement provides presumption or idea on the matter in issue or relevant matter.
As to section:
Section 11 of the Code of Civil Procedure discusses on res judicata. On the other hand, order 12 of the Code of Civil Procedure, ss. 17-23 and 31 of the Evidence Act discusses admissions.
Distinction as to application:
Res judicata applies where the suit has been determined. On the other hand, where the suit is pending, admission applies.
As to bar:
A suit becomes barred by res judicata. No suit becomes barred by admission.
Distinction as to object:
Res judicata bars more than one suit on the same subject-matter. On the contrary, admission helps to rapid disposal of the suit.
Result:
No new suit can be filed for a same matter because of res judicata. On the contrary, an admission acts as an estoppel.
Question: Does an ex-parte decree act as res judicata?
According to rule 6 of order 9 of the Code of Civil Procedure, if the summons is served properly and it is found that the plaintiff is absent, the court may give ex- parte decree.
Any subsequent suit after the ex-parte decree order is considered as not-maintainable for res judicata principle. If any suit is decided ex-parte, no new suit shall be filed on the same matter. Thus an ex-parte decree or order shall be regarded as barred for res judicata. Because an ex-parte decree shall have the same effect as if it would have been a bi-parte decree.