Res Judicata

Guest (Querist) 20 April 2010 This query is : Resolved
Facts : Party A had filed a suit on passing off action against a Party B. The suit was dismissed. Party A has filed an appeal before the High Court & the same is pending. Party A has filed a subsequent suit against the same Party B on similar facts but this subsequent suit is on infringment of trademark. whether this subsequent suit will be hit by res-judiciata.

In my view, since an appeal is a continuation of a suit, the earlier suit cannot be said to be heard & finally decided & therefore, the subsequent suit will not be hit by res-judicata. But, is there any legal basis to support my contention.
I will be highly obliged if i am provided with any authoritative opinion/case law on this point.
regards.

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R.R. KRISHNAA (Expert) 20 April 2010
In view of the pendency of the appeal the issue of res judicata is still open and unless and until the appeal is decided the plea of res judicata could not be applied in the subsequent suit.

The subsequent suit filed by A would be adjourned sine die till the appeal is decided on merits.

Raj Kumar Makkad (Expert) 20 April 2010
I go with krishana

Bobby Mani T (Expert) 21 April 2010
More than resjudicata the subsequent suit is hit by bar on further suit under section 10 of CPC

Binod Kumar Mishra (Expert) 26 April 2010
Dear Harish,

you have not clearly mentioned that what relief was sought by in the first case. since the subject case was same but relief was different one and as far as my views are saying that resjudicata is applied only when "if you have an issue and you have not relied on the same at sometime and a later stage you are asking for the same".

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