Res judicata
M.Sheik Mohammed Ali
(Querist) 15 June 2012
This query is : Resolved
Dear Experts,
one of the plaintiff file a civil and criminal case against defendant, the cause of action is recovery money from defendant, same time defendant cheque was dishonour, so immediately the plaintiff file civil and criminial NI138 has filed before the court, now my question is ?
1. same parties and same cause of action arosed it is come under res judicate for one cause of action, if no pls provide me any citation for dismissed the case.
Nadeem Qureshi
(Expert) 15 June 2012
Dear Mr. Ali
you are right that if the parties are same, cause of action is same it is comes under res-judicata, but the delhi High Court has held that both civil and criminal case/actions, for dishonour of a Cheque, are maintainable against the drawer of the cheque.(Canbank Financial Services Ltd. v. Gitanjali motors 1995 Cr.LJ 1222)
Adv Archana Deshmukh
(Expert) 15 June 2012
Both the cases (civil and criminal case) are maintainable in this matter and there is no bar of res judicata.
R.K Nanda
(Expert) 15 June 2012
Agree with experts.
Anirudh
(Expert) 15 June 2012
First let us understand as to what is "Resjudicate".
According to Sec. 11 of CPC, in order to attract the bar of resjudicata the following ingredients must be satisfied:
1. It should be a suit (in the instant case one is a civil suit (say summary suit) and the other is a criminal complaint - therefore this ingredient itself does not get satisfied).
2. The same issue should have been there directly and substantially in the earlier suit (in the instant case there was no earlier suit at all)
3. The issue in the earlier suit ought to have been heard and finally decided by the Court. (In the instant case, it is the first time a suit has been filed - it is yet to be heard and decided - therefore even this ingredient has not been satisfied.)
Therefore, before harping on the issue of 'resjudicate' one should understand the concept fully.
Dr V. Nageswara Rao
(Expert) 16 June 2012
1. Even if it is the same cause of action, if the law makes it actionable both as a crime and civil action, both the remedies can be pursued.For instance, defamation.
2. However, the judgment in criminal case will not operate as res judicata in the civil case and vice versa.
M.Sheik Mohammed Ali
(Querist) 16 June 2012
Thanks To All Experts. same time as per limitation act, the plaintiff can take limitation from cheque date or invoice date in the civil suit, pls clarify me.
