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Section 11

Code of Civil Procedure, 1908

 

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 issue in a former suit between the same parties, or between 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 denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

          Explanation II.            For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

          Explanation III.           The matter above referred to must in the former suit have been alleged 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 ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

         Explanation V.             Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.

        Explanation VI.             Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for purposes of this section, be deemed to claim under the persons so litigating.


           Court Decisions

Res judicata– Dismissal of suit on principle of- Dismissal of suit on the doctrine of res judicata could not be termed as the decision based on technicalities. PLD 2003 Lah. 48 

Principle:-  Essence of the principle of res judicata contained in S. 11, C.P.C is that a relied which is or which can be claimed and prayed for by a litigant through one recourse to law cannot be claimed or prayed for again by the same litigant before the same forum- Principle, thus, saves the Court from being vexed repeatedly by a litigant for the same relief or for a relief which could have been claimed or prayed for by him in earlier action. PLD 2003 Lah. 1 Matter directly and substantially in issue in the subsequent suits as well as in the present suit being the same, was hit by the provisions of S. 11, C.P.C and thus barred by law. PLD 2003 SC 484            Pleadings at variance in both the suits– Controversy had substantially been in issue between the same parties in the former suit dismissed under O. XVII, R.3, C.P.C- Both the Courts below had dismissed the suit on the basis of dourine of res judicata was not applicable as the previous suit had not been decided on merits and the pleadings of the parties were at variance in both the suits-Validity- Where the Court proceeded to decide the suit under O.XVII, R.3, C.P.C. it was a decision on merits and a fresh suit on the same cause of action was barred under S.11, C.P.C– plaintiff having himself had filed the earlier suit which was dismissed under O.XVII, R.3, C.P.C., and the judgment was not challenged any further, the plaintiff was bound by such determination irrespective of the pleadings of the parties Determination of the “issue” is found mentioned in S.11, C.P.C which issued had stood determined in the former sit—View taken by both the Courts below could neither be regarded illegal nor suffering from any material irregularity.  PLD 2003  Lah. 48

Object, of Section 11 C.P.C. is to bound down parties in the first instance set up their total claim and defence during course of their pleadings so as to avoid multiplicity or repetition of same cause of action or issue which was intentionally left out. Object behind Section 11 C.P.C., therefore, is to put an end and give finality to cause of action between same parties in respect of same property which would include matters directly relatable to cause of action or which were ancillary or collateral to subject in issue.  PLJ  1999 Pesh. 6 = 1999 MLD 2140.

Essential requirements to attract bar of res judicata-Trial Court deciding case on basis of principles of res judicata with observation that no copy of previous suit or any decree or order had been placed on record-Defendants m their written statement had not specifically alleged as to what type of suit was instituted by predecessor of plaintiffs-No proof was on record to suggest that previous suit was instituted for property in question and that alleged decree was binding upon parties–­Requirements of res judicata in terms of S.11, C.P.C. thus, stood non-complied with regard to, parties to suit, nature of suit, property involved in suit, and nature of controversy between parties-Principles of res judicata was not applicable in circumstances. 1995 M L D 690

Rule of res judicata. To be interpreted strictly. Trial of cause unless necessarily involves re-opening of decision, do not to be slammed. PLJ 1976 AJ&K 131.

Doctrine of res-judicata. Court in order to apply bar of res-judicata must first determine, whether the same was raised, determined and decided in former proceedings before parties; There being no indication that question in regard to the use of such property had been conclusively determined by Settlement Authorities or High Court in earlier litigation, question of applicability of res-judicata could not pressed into service. PLJ 1999 SC 1076 = 1999 SCMR 705. Doctrine of res judicata is not only confined to cases falling under Section 11 C.P.C., but would also apply to cases where provisions of C.P.C. are not applicable. Constructive application of these provisions do apply in such cases as otherwise there could be no end to litigation. Principles of res judicata as contained in S- 11 C.P.C. are not exhaustive, but can be applicable to cases where provisions of C.P.C. have not specifically been made applicable.   PLJ 1995 Kar. 216 = PLD 1995 Kar. 214.  Where two civil suits were filed at two – districts seeking same relief, between same parties and about same properties. One suit at district “A” was dismissed for non-production of evidence and suit at “B” district was decreed later on. Earlier dismissal of suit at “A” will operate as res-judicata. Order of dismissal of suit earlier substantially involving the same issues and cause of action between same parties for failure to produce evidence would be deemed to be a judgment on merits and operated as res-judicata between parties which bar second suit. PLJ 2000 Lah. 800 = 2000 MLD 404.  It is well-settled that when review is refused by a Court that is no ground for filing a new suit on those very grounds. PLJ  1976 Lah. 510.

S. 11 of C.P.C. prohibits a court from trying any suit or issue in which matter directly and substantially in issue in a former suit between same parties, or between parties under whom they or any of them claim, litigating under same title, in a court competent to try such subsequent suit or suit in which such issue has been subsequently raised, and has been heard and finally decided by such competent court. Section 11 of the C.P.C. does not make any distinction between a judgment in rem or a judgment in personam. PLJ 1997 SC 446 = 1997 SCMR 281 = NLR 1997 Civil 276.

When S. 11 read with Order XXVII, Rule 2. Applications for leave to appear and defend suit dismissed. Suit for damages by defendants in those suits. Whether principle of res-judicata applicable. Failure to obtain leave to appear and defend suit, amounts to admission of allegations in plaint. It is settled law that decision under Order XXXVII, CPC in default of obtaining leave, is to be taken decision on merits. Suit is barred by principle of res-judicata as laid down in Section 11 of C.P.C. PLJ 1994 Kar. 212 = PLD 1994 Kar. 242.

Canal and Drainage Act — Order of Authority below shifting respondents’ land from one outlet to another in interest of better irrigation which was affirmed by Appellate Authority was challenged in Constitutional petition, but petition was also dismissed-Despite order of Authority having attained finality up to level of High Court, petitioners who were very influential persons did not let order implemented for a period of more than two decades in collusion with officials of Department and by bringing frivolous litigation-After having failed twice in their civil suits, a similar type of suit was again filed and object of that suit clearly was to get the order cancelled which had attained finality up to level of High Court-Suit was definitely a suit which was based upon a different cause of action, but object was simply vacation of final order-Suit being barred on the principle that no one was to be twice vexed for same cause of action stay application had rightly been dismissed by Appellate Court below by setting aside a sketchy, unjust, illegal and perverse order passed by Trial Court-Case being not fit for exercise of revisional jurisdiction of High Court particularly, when justice had been done by Appellate Court below dismissing stay application of petitioners, High Court dismissed suit being incompetent and frivolous and barred under S.11, C.P.C.  1994 M L D 295

PLD 1966 Lah.. 904; PLD 1964 SC 97; 1985 CLC 810; 1991 MLD 1312; PLD 1991 SC 1109; 1989 ALD 485; 1987 SCMR 527; AIR 1947 Lah.. 102; PLD 1983 SC 46 ref.

Explanation IV. Res-judicata. Principle of. Parties to suit are required to take all pleas in attack or defence which are available to them and which ought to have been taken. If party does not take such plea, it is debarred from raising such plea in a subsequent litigation. Exception to that well settled principle is that a party to litigation is not bound to raise any plea which is neither relevant nor has any similarity with cause of action; that if plea is inconsistent with other pleas, it is not required to raise in a suit by way of attack or by way of defence. PLJ 1997 Lah. 286 =1996 CLC 916.

Leave to appeal was granted to consider whether subsequent suit filed in the Court of District Judge was barred by the principle of res judicata as plaintiff had previously filed a suit on the same cause of action which he had withdrawn with permission to file a fresh suit -and that plaintiff was not legally competent to fix jurisdictional value of suit arbitrarily so as to institute the suit in the higher forum i.e. in the Court of District Judge and that ordinarily, a suit has to be filed in the lowest forum of competent jurisdiction. 1992 M LD 1301

Defendants, held, were duty bound to press his cast; in respect of want of pecuniary jurisdiction of Court at first instance before trial and then before Appellate Court–When no objection was taken by defendants as to pecuniary jurisdiction of Trial Court and. they allowed suit to be proceeded with, they, held, could not raise question of pecuniary jurisdiction for first time in execution proceedings under S. 47, C.P.C. 1989 M L D 1776

But

Question of res judicata would not arise in a case, where previous suit was dismissed for non-prosecution—Section 11, C.P.C. would be applicable only if previous suit had been decided on merits regarding same issues, which were directly and substantially in issue in the subsequent suit. 2002 SCMR 300

Where Plaintiff filed suit for possession of property, which was resisted by defendant on pleas of adverse possession, being barred by res judicata and O.II, R.2, C.P.C.—Defendant also claimed compensation for raising construction over the property and making improvements—Trial Court decreed the suit, which was upheld in appeal—Validity—Previous suit was not filed on the basis of same cause of action, which was dismissed for non-prosecution—As to amount spent on construction and improvements, except statement of defendant, no other evidence was led—Defendant could not prove plea of adverse possession as required under law—Findings of Courts below did not suffer from any illegality such as misreading or non-reading of any material piece of evidence and as regard res judicata and applicability of O.II, R.2, C.P.C.—S.C refused to grant leave to appeal. 2002 SCMR 300

Bar of res judicata is applicable which was directly and substantially in issue in previous suit and was finally decided. A perusal of previous judgment clearly shows that position taken in new plaint is correct that respective shares of parties were not worked out or determined. Appellant did not attempt to re-open the matter decided in previous suit but they sought its implementation. Bar of res judicata, therefore, is not applicable to these facts. It has been applied without examining previous decree and plaint of present suit. Judgment and decrees of Courts below set a side and it was directed to dispose of suit filed by appellants on merits. PLJ  1997 SC (AJK) 202 = 1997 MLD 2889 = 1997 Law Notes 648.

Earlier suit for declaration was rejected by Trial Court and appeal against the judgment and decree was dismissed by Lower Appellate Court—Suit for specific performance of agreement to sell was filed subsequently—Validity—Bar contemplated under S.11, C.P.C. would not apply to subsequent suit for specific performance of contract and permanent injunction—Dismissal of appeal by the Lower Appellate Court had no bearing on the subsequent owing to distinct cause of action in both the matters—Principle of res judicata was not applicable in circumstances. PLD 2002 Kar. 333

Res judicata. Principle of. Applicability of. Issue of res judicata is to be decided like any other issue and if there is no evidence in support of plea of res Judicata. issue could not be decided in petitioner’s favour. PLJ 1996 SC 1718 = 1996 SCMR 1430.

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