Res judicata
Sections 10 & 115(4) of the Code of Civil Procedure: The principle that a party is not to be vexed (হারান) twice over the same matter and even where Section 11 does not in terms apply, the general principles of res judicata have always been invoke by Courts of law to achieve finality in litigation. The principles applied as between two stages in the same litigation. An issue decided in one way at an earlier stage is not allowed to be recanvassed at a subsequent stage. The object of the Rule contained in Section 10 is to prevent the Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same subject matter. The policy of law is to confine the party to one litigation and thus obviating (পরিত্রাণ পাওয়া) the possibility of two contradictory verdicts by one and the same Court in respect of same relief. This section intends to protect a person from multiplicity of proceedings and avoids conflict of decisions. It also aims to avert inconvenience to the parties. (Para-22, Mr. Justice Siddiqur Rahman Miah). 60 DLR 20: Siddique Mia Vs. Md. Idris Miah & others
Analogous or Simultaneous hearing Subject matter, property and parties are not same
The learned Assistant Judge after hearing both the parties by its judgment and order was pleased to reject the application holding that Title Suit No.12 of 2008 has been filed after 5 years of the present suit. The parties of the suits are not same, that the issues are not also same. The summons of defendants has not been served and the suits are not same stage and as such the application was rejected. (Para-8, Mr. Justice A.K.M. Shahidul Huq). 36 BLD 96: Md. Moshiur Rahman Miah Maslem & others Vs. Narju Chowdhury @ Arju
Any previous decision on a matter in controversy in a legal proceeding including writ petition decided after full contest by the parties or after affording fair opportunity to the parties to prove their case will operate as res judicata in a subsequent regular suit. Therefore, in view of the above decision of the Indian Supreme Court we hold that since the right and title of the respondent No.5 in the disputed land has not been found by the High Court Division in Writ Petitions No.11099 of 2006 and 3030 of 2005 filed at the instance of the respondent No.5, subsequent suit being No.373 of 2005 instituted by the respondent No.5 for declaration of title so far as it relates to the disputed plot claimed by the appellant in Writ Petition No.7817 of 2009 is barred by the principle of res judicata. 19 SCOB [2024] AD 1
Code of Civil Procedure [V of 1908] Section 11 Res judicata Any previous decision on a matter in controversy in a legal proceeding including writ petition decided after full contest by the parties or after affording fair opportunity to the parties to prove their case will operate as res judicata in a subsequent regular suit. Since the right and title of the respondent No. 5 in the disputed land has not been found by the High Court Division in Writ Petitions No. 11099 of 2006 and 3030 of 2005 filed at the instance of the respondent No. 5, subsequent suit being No. 373 of 2005 instituted by the respondent No. 5 for declaration of title so far as it relates to the disputed plot claimed by the appellant in Writ Petition No. 7817 of 2009 is barred by the principle of res judicata....(21)
31 ALR [2024] AD 1
"32. res judicata is a doctrine based on the larger public interest and is founded on two grounds: one being the maxim nemo debet bis vexari pro una et eadem causa (P. Ramanatha Aiyer, Advanced Law Lexicon (Vol. 3 3rd Edn., 2005) at page 3170.) ("No one ought to be twice vexed for one and the same cause") and second, public policy that there ought to be an end to the same litigation (Mulla, Code of Civil Procedure (Vol. 1, 15th Edn., 1995) at page 94. It is well settled that Section 11 of the Civil Procedure Code, 1908 (hereinafter "the CPC") is not the foundation of the principle of res judicata, but merely statutory recognition thereof and hence, the Section is not to be considered exhaustive of the general principle of law. (see Kalipada De v. Dwijapada Das) The main purpose of the doctrine is that once a matter has been determined in a former proceeding, it should not be open to parties to re-agitate the matter again and again. Section 11 of the CPC recognises this principle and forbids a court from trying any suit or issue, which is res judicata, recognising both 'cause of action estoppel' and 'issue estoppel'." State of Karnataka and others vs. All India Manufacturers Organization and others, AIR 2006 SC 1846. This case is referred in 31 ALR [2024] AD 1
"73.... the provisions of section 11 CPC are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it will operate as res judicata in a subsequent regular suit. .............The nature of the former proceeding is immaterial.” Gulab Gulabchand Chhotalal Parikh vs. State of Bombay AIR 1965 SC 1153. This case is referred in 31 ALR [2024] AD 1
Question of res-judicata is a mixed question of facts and law necessitating evidence and investigation upon trial of the suit. But the dispute is a clear case to come into a definite conclusion without evidence, because of the fact that the matter raised in the suit has raised in the earlier suit which was finally adjudi- cated upon and in that suit the government utterly failed to establish their claim that the owner of the property left the country for India without executing any deed of agreement for sale in favour of any person, consequently, the property in question was entered into the census list as enemy property now vested property, as such, the suit is barred by res- judicata. [73 DLR 399]
