PART I

SUITS IN GENERAL

JURISDICTION OF THE COURTS AND RES JUDICATA

9. Courts to try all civil suits unless barred.— The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

22[Explanation I]—A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

23[Explanation II—For the purposes of this Section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.]

COMMENTS

A civil suit by landholder for possession based on title lies in the Civil Court; the jurisdiction of the Court is not barred. (Rohini Prasad v. Kasturchand, AIR 2000 SC 1283(1286)(A case under the MP Land Revenue Code (1959).

22. Explanation renumbered as Explanation I by Act No. 104 of 1976, w.e.f. 1st February, 1977.

23. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

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 24[India] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of 24[India] established or continued by 25[the Central Government 26[***] and having like jurisdiction, or before 27[the Supreme Court].

Explanation.—The pendency of a suit in a foreign Court does not preclude the Courts in 24[India] from trying a suit founded on the same cause of action.

24. Substituted by Act No. 2 of 1951, for the words “the States”.

25. Substituted by the A.O. 1937, for the words “the G.G. in C.”

26. The words “or the Crown Representative” omitted by the A.O. 1948.

27. Substituted by the A.O. 1950, for the words “His Majesty in Council”.

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 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 beep 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 the purposes of this Section, be deemed to claim under the persons so litigating.

28[Explanation VII.— The provisions of this Section shall apply to a proceeding for the execution of a decree and references in this Section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.

Explanation VIII.— An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.]

COMMENTS

Where a plea was available to a party in the earlier proceedings and the same was not put in issue, the plea cannot be raised in subsequent proceedings by the party, being barred by the principle of constructive res judicata. (Maharashtra Vikrikari Sangathan v. State of Maharashtra, AIR 2000 SC 522(630).

Res judicata.—It is well settled that an earlier decision, which is binding between the parties, loses its binding force if between the parties a second decision decides to the contrary. Then, in the third litigation, the decision in the second one will prevail and not the decision in the first. (Sajjadanashin Sayed Md. B.E. Edr. V. Musa Dadabhat Ummer, AIR 2000 SC 1238(1247).

28. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

12. Bar to further suit.— Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.

13. When foreign judgment not conclusive.— A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except.—

(a) Where it has not been pronounced by a Court of competent jurisdiction;

(b) Where it has not been given on the merits of the case;

(c) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of 24[India] in cases in which such law is applicable;

(d) Where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) Where it has been obtained by fraud;

(f) Where it sustains a claim founded on a breach of any law in force in 25[India].

24. Substituted by Act No. 2 of 1951, for the words “the States”.

25. Substituted by Act No. 104 of 1976 for earlier sub-section (3), w.e.f. 1st February, 1977.

14. Presumption as to foreign judgments.— The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.

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