Monday, 10 February 2014

Res Judicata and Res Subjudice

Res Judicata is defined in the following section

10. 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 1[Pakistan] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of 1[Pakistan] established or continued by 2[the Central Government 3***] and having like jurisdiction, or before 4[the Supreme Court].
Explanation.- The pendency of a suit in a foreign Court does not preclude the Courts in 1[Pakistan] from trying a suit founded on the same cause of action.

Res Subjudice is defined in the following section

11. No Court shall try 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 $0 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 1V.-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 the purposes of this section, be deemed to claim under the person so litigating.

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