The Code of Civil Procedure, 1908 contains two closely related rules that prevent parties from litigating the same matter again and again. Examiners often ask candidates to compare them.
Res sub judice: Section 10 (stay of suit)
A court shall not proceed with the trial of a suit when the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties (or parties claiming under them), litigating under the same title, and that earlier suit is pending in a competent court in Pakistan.
Key points
- It applies to a matter that is still pending.
- Only the trial is stayed. The later suit is not dismissed.
- Its purpose is to avoid conflicting decisions by courts of concurrent jurisdiction.
Res judicata: Section 11
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, litigating under the same title, in a court competent to try it, where it has been heard and finally decided.
Essential conditions
- The matter was directly and substantially in issue in both suits.
- The former suit was between the same parties or their privies.
- The parties litigated under the same title.
- The former court was competent to try the later suit.
- The matter was heard and finally decided.
Explanation IV (constructive res judicata): any matter that might and ought to have been raised as a ground of attack or defence in the former suit is treated as having been directly and substantially in issue.
Quick comparison
- Stage of the earlier suit: Section 10 applies while it is pending. Section 11 applies once it is finally decided.
- Effect: Section 10 stays the trial. Section 11 bars the suit or issue.
- Aim: Section 10 avoids conflicting decisions. Section 11 secures finality of litigation.
