Bar Council Practice Test & Exam Prep | Bangladesh

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A files a suit against B for recovery of possession of land. The suit is dismissed on merits. A then files a second suit against B for the same land, but bases the claim on a different title which A could have raised in the first suit. How is the second suit affected by Res Judicata under Section 11 of the CPC?

The second suit is maintainable because the ground of title in the second suit is completely new and was not decided in the first suit. The second suit is barred by constructive Res Judicata under Explanation IV of Section 11 because the new ground of title ought to have been made a ground of defense or attack in the first suit. The second suit is not barred because Res Judicata only applies to the main issues actually decided, not to potential issues that were omitted. The second suit is maintainable with the permission of the District Judge, as it is a matter of judicial discretion.

Correct Answer:

The second suit is barred by constructive Res Judicata under Explanation IV of Section 11 because the new ground of title ought to have been made a ground of defense or attack in the first suit.

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