Law: Civil Procedure Code (V of 1908)

Section: 11 , 100

  Civil Procedure Code (V of 1908)--- ---S. 11---Res judicata, principles of---Conditions precedent for the application--Principles of res judicata are however not applicable where the subject-matter of litigation between the parties in previously instituted suit and suit under adjudication is entirely different. The principle of res judicata is contained in 5.11 of the Code of Civil Procedure and is founded upon a principle of justice and equity. The justice requires that every cause should be once fairly tried and public tranquillity requires that having been tried once all the litigation about the cause should be concluded for ever between those parties. The maintenance of public order, the repose of society and the quiet of families require that whatever has been definitely determined, by competent Tribunals shall be accepted as irrefragable legal truth. The following conditions are conditions precedent to the application for res judicata:-- The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively, in the former suit. The former suit must have been a suit between the same parties or between parties under whom they or any one of them claim. The parties as aforesaid must have litigated under the same title in the former suit. The Court which decided the former suit must have been a Court competent to try the subsequent suit in which such issue is subsequently raised. The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit. The principle of res judicata is not applicable where the subject-matter of litigation between the parties in previously instituted suit ,and suit under adjudication is entirely different. Mst. Sohni v. Sharaf Khan and others 1975 SCMR 355 and Mst. Gul Ferosha v. Umer Gul and 11 others 1985 CLC 810 ref: Civil Procedure Code (V of 1908)---   ---S.100---Second appeal---Concurrent findings of both Courts below, if tainted with misapplication of law on the face of record, can be reversed by High Court in second appeal.…