ABSTRACT

This Research paper attempts evaluation of

section – 10 of the Civil Procedure Code. From
the British Colonial past, India has inherited a
The study is based on secondary data in form
of relevant legislations, policy & budget
documents and court judgments.
Gaurav Shukla
Mayank Bakliwal
Rhea Ghanshani
Rutvik Shukla

SECTION – 10 Karishma Singh

CIVIL PROCEDURE CODE

RES SUB JUDICE

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SECTION – 10
RES SUB JUDICE
PROJECT ASSIGNMENT
BBA. L.L.B.
(2015-16)

SUBMITTED BY:

GAURAV SHUKLA MAYANK BAKLIWAL

(ROLL NO.: A008) (ROLL NO.:A018)

RHEA GHANSHANI RUTVIK SHUKLA

(ROLL NO.: A028) (ROLL NO.:A053)
KARISHMA SINGH
(ROLL NO.: A054)

SUBMITTED TO:

Prof. SHRIKANT AITHAL

(Professor)

MAY 10, 2016

_____________________________________________________

SVKM’S
NARSEE MONJEE SCHOOL OF LAW,
VILE PARLE (W) MUMBAI-400049.

REMARKS:

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TABLE OF CONTENTS

Abbreviations 03
Table of cases / statutes 04
1. Chapter 1: Introduction 05
1.1. Meaning 05
1.2. Evolution / Background 06
1.3. Scope of the topic 06
1.4. Scheme of the topic context 06
2. Chapter 2: Research Methodology 07
2.1. Relevance of the topic 07
2.2. Object of the study 07
2.3. Research questions/ Hypothesis 08
2.4. Limitation of the Research 08
2.5. Secondary Sources of data 08
3. Chapter 3: Legal Analysis 09
3.1. Study of various provisions under the code 09
3.2. Relevant legal/ Criminal bodies 12
3.3. Present legal framework 12
4. Chapter 4: Role of Judiciary 14
4.1. Landmark cases 14
4.2. Principle set out by the judiciary 15
5. Chapter 5: Comparative Study 17
5.1. Res Sub Judice and Res Judicata 17
5.2. Doctrine of Res Sub Judice in other countries 17
6. Chapter 6: Conclusion & Suggestions 19
6.1. Students findings 19
6.2. Suggestions 19
6.3. Drawbacks in the legal framework 20
Bibliography & References 21

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ABBREVIATIONS

 AIR : ALL INDIA REPORTER

 ETC. : AND OTHER THINGS

 GOVT. : GOVERNMENT

 HC : HIGH COURT

 NO. : NUMBER

 ORS. : OTHERS

 SC : SUPREME COURT

 SCC : SUPREME COURT CASES

 SEC. : SECTION

 SCR : SUPREME COURT REPORTER

 SUPRA : AS STATED EARLIER

 U/S : UNDER SECTION

 WWW : WORLD WIDE WEB

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TABLE OF CASES

 Escorts Const. Equipments Ltd. v. Action Const. Equipments Ltd. 1999 PTC 36 (Del)
 National Institute of Medical Health and Neuro Sciences v. C Parameshwara AIR 2005 SC 242
 Indian Bank v. Maharashtra State Cooperative Marketing Federation Ltd. AIR 1998 SC 1952
 Harish Chandra v. Triloki Singh AIR 1957 SC 444
 Arun General Industries v. Rishabh Manufacterers Pvt. Ltd. AIR 1972 Cal. 128
 Indian Bank v. Maharashtra State Cooperative Marketing Federation Ltd. AIR 1998 SC 1952
 Pukhraj D. Jain v. G. Gopalakrishna AIR 2004 SC 3504
 Manohar Lal v. Seth Hiralal AIR 1962 SC 527

TABLE OF STATUTES

 Civil Procedure Code, 1908

 Indian Evidence Act, 1872

SECTIONS PROVISION IN THE CIVIL PROCEDURE CODE

Sec. 10 Stay of Suits
Sec. 11 Res Judicata
Sec. 151 Saving of inherent powers of Court

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Chapter 1: Introduction
he first provisions related to avoiding multiplicity of suit starts with the provision of the
T concept of Res Sub Judice as under:
Section 10 of the Civil Procedure Code, 1908 speaks about “Stay of Suit”

"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 India having
jurisdiction to grant the relief claimed, or in any Court beyond the limits of India
established or continued by the Central Government and having like jurisdiction, or
before the Supreme Court".
Explanation - The pendency of a suit in a foreign Court does not preclude the Courts in India from
trying a suit founded on the same cause of action.

As the heading of the section says ‘stay of suit’, means no court should proceed with the trial
of any suit in which the matter in issue is directly and substantially in issue with the previously
instituted suit between the same parties and the court before which the previously instituted suit is
pending is competent to grant the relief sought.

MEANING

Res Sub Judice

Sub Judice in Latin means “Under Judgment”. It denotes that a matter or case is being
considered by Court or Judge. When two or more cases are filed between the same parties on the
same subject matter, in two or more different Courts, the competent court has power to “Stay
Proceedings” of another Court. In India, this concept is encapsulated in S.10 of Civil Procedure
Code.

Res Judicata
Res Judicata in Latin means “a matter (already) judged.” It is also called as Claim Preclusion.
It is a common law practice meant to bar re-litigation of cases between the same parties in the court.
A case in which there has been a final judgment and is no longer subject to appeal, the doctrine of
Res Judicata bars continued litigation of such matter between the same parties. Thus in case of Res
Judicata, the matter cannot be raised again, either in the same court or in a different court.
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EVOLUTION
The doctrine of res sub judice, in its essence, has an ancient history, although it is difficult to
say definitively whether or not the doctrine as it stands now. Understood in the distant past by both
Hindu lawyers and Muslim jurists, it was known to ancient Hindu Law as “Purva Nyaya” or “former
judgment”. Under Roman Law, it was recognized by the doctrine of exception rei judicatae which
also meant “previous judgment”.

In order for the bar of res sub judice to be applicable, it must be shown that the cause of
action in both the suits is the same as well as that the plaintiff had an opportunity to get the relief
that is now being claimed in the subsequent suit, in the former proceeding itself.

SCOPE OF THE TOPIC

S.10 deals with the concept of Res Sub Judice. The object of this section is to prevent
Courts of concurrent jurisdiction from simultaneously, trying two parallel cases, in respect of same
matter in issue. The two fold objects are:
1. Avoid wasting Court Resources.
2. Avoid Conflicting decisions.
S.11 deals with the concept of Res Judicata. Res Judicata aims to prevent:
 Injustice to the parties of a case that has been supposedly concluded.
 Unnecessary waste of Court resources.
 Prevent Multiplying of judgments.
 Recovery of damages from the defendant twice for the same injury.

SCHEME OF THE TOPIC CONTENT

The above topic deals with a general introduction to the topic and subsequently the further
topics deal with the rest of the chapters of the project. Chapter 2 of the project deals with the legal
analysis where we have all the legal provisions prescribed by the law and also the legal and
constitutional provisions of the same. Chapter 3 deals with the role of the judiciary with respect to
Section 10 of CPC and some important landmark judgments relating to the same topic. Chapter 4 of
the project gives a brief view relating to the comparisons to different topics and the position of
similar law in different countries of the world. Chapter 5 consists of the conclusion which gives a
summary of the entire project and also includes the personal findings, opinions and suggestions of
the researchers.

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Chapter 2: Research Methodology

The research methodology used for the present research paper is traditional Doctrinal
research method. There are generally two methods of carrying out a research viz. primary and
secondary. Primary method is a method in which facts and data are collected on first hand basis
directly by the researcher however in secondary method the researcher does an indirect research by
conducting a research on some other researcher’s findings. Hence the method adopted for this project
has been a secondary method of research as most of the information can be sought form the available
literature by referring books, articles, journals, websites etc.

RELEVANCE OF THE TOPIC

Often people confuse the concepts of res sub judice and res judicata. Res sub judice is
discussed in S. 10 and applies to a the date of institution of suit. It is matter pending judicial enquiry.
S. 11 of the CPC and is a matter adjudicated upon and applies to the date of adjudication.

Res sub judice stays the latter suit instituted in court which has the same matter directly and
substantially in issue in the previous suit. Res judicata bars the trial of a suit in which the matter
directly and substantially in issue has already been adjudicated upon in a previous suit.

OBJECT OF THE STUDY

1. To do an in depth analysis of the concept of res sub judice and the general rule assigned to
that.
2. The main objective of this project is to ascertain the meaning and importance of the doctrine
of res sub judice.
3. Also, it is to as ascertain that how much it is applicable in the legal areas like Income, Tax
proceedings, Public Interest Litigation, Writ Proceedings etc.
4. To trace the source and development of the doctrine in the Indian legal system.
5. To find out the power of courts in interpretation of cases involving this section.
6. To identify the principles and provisions adopted by the courts in India in relation to S.10
of CPC.
7. To study the Civil provisions relating to Stay of Suits.
8. To study these provisions in the present legal framework and to examine the issues and
challenges faced by it.

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RESEARCH QUESTIONS/ HYPOTHESIS

The hypothesis of the project report is to find out the scope of sub judice cases and
while the cases are pending, what procedure are followed and the how the comes to a
conclusion in its present state.

LIMITATIONS OF THE RESEARCH

1. Although the project has reached its aims, For the sake of convenience and for detail study,
the researcher has limited the present topic to the aspect from the Indian pros and judgments
given by the Indian judiciary regarding legislative actions up to January 2014.
2. Difficulty in finding the primary sources of data.
3. Scope of the research is limited to juristic writings, precedents, views of different judges and
articles.

SECONDARY SOURCES OF DATA

The whole project is made with the use of secondary source. The following secondary
sources of data have been used in the project:
1. Manupatra
2. West Law
3. Jastor
4. Newspaper articles
5. Juristic writings
6. All India reporter
7. Law journals
8. Precedents

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Chapter 3: Legal Analysis

The doctrine of res sub judice aims to prevent courts of concurrent jurisdiction from
simultaneously entertaining and adjudicating upon two parallel litigations with respect to the same
cause of action, same subject matter and same relief claimed.

For Example: Wife A filed a suit for separation of conjugal life and custody of minor child
against husband B. Subsequently husband B claimed custody of minor child by filing another suit
against wife B. The second suit liable to stay under Sec. 10 of CPC, 1908. But the problem arises
when part of the subject matter is common to previously instituted suit and subsequently instituted
suit. In case the Appellate Division that only one plot was common in two suits, but that was not
considered as a ground for stay and it was held that the two suits should be tried analogously.

STUDY OF VARIOUS PROVISIONS UNDER THE CODE

The Code provides rules for the civil court in respect of the doctrine of res sub judice. This
rule applies to trial of a suit not the institution thereof. 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 India having
jurisdiction to grant the relief claimed, or in any Court beyond the limits established or continued by
the Code and having like jurisdiction, or before the Supreme Court.1

Therefore civil court should not proceed with the trial of any suit in which the matter in issue
is directly and substantially in issue in a previously instituted suit between the same parties and the
court before which the previously instituted suit is pending is competent to grant the relief sought.2
The stay must be of the latter suit and not of the earlier suit between the same parties.3 The word
suit includes an appeal, but it does not include an application for leave to appeal.4

1
S. 10 of the CPC, 1908.
2
Indian Bank Vs. Maharashtra State Cop. Marketing Federation Ltd, AIR 1998 (SC) 1952
3
Sachindra vs. Royani, 7DLR 198, Abdul Vs. Abdul, 44 DLR 601.
4
Swami Vs. Siris, 5 DLR 175
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CONDITIONS OF RES SUB-JUDICE

In order to attract the application of this section it is necessary that the following conditions
are fulfilled:
1. There must be two suits one previously instituted and the other subsequently instituted.
2. The matter in issue in the subsequent suit must be directly and substantially in issue in the
previous suit.
3. Both the suits must be between the same parties or their representatives
4. The previously instituted suit must be pending in the same court in which the subsequent suit is
brought or in any other court in Bangladesh or in any court beyond the limits of Bangladesh
established or continued by the Government or before the supreme court.
5. The court in which the previous suit is instituted must have jurisdiction to grant the relief claimed
in the subsequent suit.
6. Such parties must be litigating under the same title in both the suits.5
If these essential conditions are fulfilled, the subsequent suit must be stayed by the court
where it is pending It must be remembered that the institution of the subsequent suit is not barred
but its trial only. The final decision of the former suit shall operate as res-judicata in the subsequent
suit. But problem arises when part of the subject matter is common to previously instituted suit and
subsequently instituted suit.

WHEN NOT APPLLIED

Court cannot apply this section where point at issues are distinct and different,6 or even
where there are some issues in common and others are different issues.7 This section is also not
applicable between the suits where although the parties are same, but the issues are not the same.8
However, this section can only be applied if the following condition are satisfied. These are:
1. Two suits – Previously Instituted and Subsequently Instituted.
2. Matter in issue in subsequent suit – directly and substantially in issue in previous suit.
3. Both suits between same parties or their representatives.
4. Previous suit must be pending in same or in any other court in India.
5. The court dealing with previously instituted suit competent to grant relief claimed in subsequent
suit.

5
C.K. Takwani, Civil Procedure, 6th Edition, Eastern Book Company, 2009, pg-65
6
Alimmllah Vs. Sheikh. 43DL RLL3
7
Abdur Vs. Asrafun, 37 DLR 271.
8
Manzar Vs. Rema. 33 DRL 49
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6. Parties litigating under the same titles in both the suit.

The word ‘shall’ in the section makes it mandatory and the moment court finds that the above
conditions are satisfied, the court will not proceed with the subsequently instituted suit, that is, the
court will stay with the proceeding of subsequent suit.

PURPOSES OF RES SUB JUDICE

The Sec. 10 intends to protect a person from multiplicity of proceedings and to avoid a
conflict of decisions. It also protects the litigant people from unnecessary harassment. It also aims
to avoid inconvenience to the parties and gives effect to the rule of res judicata.9

INHERENT POWER TO STAY

Court may use its inherent power to stay of suit. Although the provision of Sec. 10 is
mandatory, but this provision has not taken away the court’s inherent power under Sec. 151 so as to
stay the proceedings on the facts and circumstances of a given case to secure the ends of justice
where section 10 is not applicable.10 Therefore court may use its inherent power to secure the ends
of justice when section – 10 is not applicable, even to prevent abuse of process of court, court may
stay former suit by applying its inherent power.11

However, in the light of the explanation to section 10, there is no bar on the power of an
Indian court to try a subsequently instituted suit if the previously instituted suit is pending in the
pending in a foreign court.

It is further important to remember that a decree passed in contravention of section 10 is not

a nullity, and therefore, cannot be disregarded in execution proceedings. Again, as stated above, it
is only the trial and not the institution of the subsequent suit which is barred under this section. Thus,
it lays down a rule of procedure, pure and simple, which can be waived by a party. Hence, if the
parties waive their right and expressly ask the court to proceed with the subsequent suit, they cannot
afterwards challenge the validity of the subsequent proceedings.

9
S.P.A- Annamalay Chetty vs. B.A. Thornlill AIR 1931 PC 263
10
Suraiya Vs Alimullah. 24 DLR 133, Ayat Ali Bhuyan Vs. Janata Bank, 40 DLR 56; Bashirullah Vs. Abdul Bari, 21
DLR 183
11
Ram Vs. Devidayal, AIR 1954 Bom. 176.
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SUIT PENDING IN FOREIGN COURT

The pendency of a suit in a foreign court does not preclude the court in Bangladesh from
trying a suit founded on the same cause of action. So the court of Bangladesh may try a subsequently
instituted suit if the previously instituted suit is pending in a foreign court.12

RELEVANT LEGAL/ CRIMINAL BODIES

As the heading of the section says ‘stay of suit’, means no court should proceed with the trial
of any suit in which the matter in issue is directly and substantially in issue with the previously
instituted suit between the same parties and the court before which the previously instituted suit is
pending is competent to grant the relief sought.

The purpose of the section is to bring finality in the judgment and to avoid the contradictory
decision by the two different court, as there is a very good possibility that in case when matter is
simultaneously being decided by different courts of concurrent jurisdiction, the courts may come up
with different decisions and then it will be very difficult to finalize which decisions to be abided by.

In simple word, the very authority of law will come at stake, there will be no finality of
judgment. So, with the objective to prevent courts of concurrent jurisdiction from simultaneously
entertaining and adjudicating upon two parallel litigations in respect of same cause of action, the
same subject-matter and the same relief, this section is provided in the Code. However, this rule only
applies to trial of a suit and not the institution thereof. Although, it does not preclude a court from
passing interim orders, but it applies to appeals and revisions.

The policy of law is to confine a plaintiff to one litigation so as to protect a person from
multiplicity of proceedings and also to avoid a conflict of decisions by courts in respect of same
relief.

PRESENT LEGAL FRAMEWORK

Constructive Res Judicata
Rule of constructive res judicata is engrafted under Explanation IV of Section 11 of the Code.
It is artificial form of res judicata and provides that if a plea could have been taken by a party in a

12
Explanation of S. 10 of the CPC, 1908
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proceeding between him and his opponent, he should not be permitted to take that plea against the
same party in a subsequent proceeding with reference to the same subject-matter. That clearly is
opposed to considerations of public policy on which the doctrine of res judicata is based and would
mean harassment and hardship to the opponent. Besides, if such a course is allowed to be adopted,
the doctrine of finality of judgments pronounced by the courts would also be materially affected.

Thus, it helps in raising the bar of res judicata by suitably construing the general principle of
subduing a cantankerous litigant. That is why this rule is called constructive res judicata, which, in
reality, is an aspect or amplification of the general principle of res judicata.

Res Judicata and Public Interest Litigation

Even in a public interest litigation procedural law is applicable though not strictly. Hence,
the principle of res judicata is also applicable. Where the prior public interest litigation relates tom
illegal mining, subsequent public interest litigation to protect environment is not barred.

Writ Petitions and Res Judicata

In M.S.M Sharma V. Dr. Shree Krishna, AIR 1960 SC 1186, for the first time Supreme Court held
that the general principle of res judicata applies even to writ petition filed under Article 32 of the
Constitution of India. Thus, once the petition filed under Article 32 is dismissed by the court,
subsequent petition is barred.

Similarly, a writ petition filed by a party under Article 226 is considered on merit as a contested
matter and is dismissed, the decision thus pronounced would continue to bind unless it is otherwise
modified or reversed in appeal or in other appropriate proceedings permissible under the
Constitution.

In the leading case of Daryao V. State of U.P., AIR 1961 SC 1457, the Supreme Court has
placed the doctrine of res Judicata on a higher footing, considering and treating the binding character
of the judgments pronounced by competent courts as an essential part of the rule of law.

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Chapter 3: Role of Judiciary

The judiciary plays a very important role in
setting the principles of a concept in law. Over the
years the judiciary around the world has
pronounced many decisions in cases relating to
Civil law. The framers had made the law, but
certain aspects are subject to judicial interpretation.
Some landmark cases and the ratio decidendi
adopted thereof have helped to develop and update
the laws concerning Civil and Criminal
Proceedings. A few important case studies are
discussed in detail below.

LANDMARK CASES

Escorts Const. Equipments Ltd. v. Action Const. Equipments Ltd. 1999 PTC 36 (Del)

Facts: The defendant had filed for stay of present suit, an application u/s 10 CPC, on ground that
the matter in controversy is pending in Jamshedpur Court also. This was opposed by plaintiff on
ground that, the defendants had raised issue of jurisdiction of Jamshedpur Court to entertain same
suit; and that application u/s 10 CPC can be filed in the present suit, only if objection with respect
to lack of jurisdiction was withdrawn in Jamshedpur Court.

Judgment: Court held that the conditions requisite to invoke S.10 CPC are:
 Matter in issue in both the suits to be substantially the same.
 Suit to be between the same parties or parties litigating under them.
 Previously instituted suit to be in the same Court or a different Court, which has jurisdiction
to grant the relief asked.

There is nothing to the effect that defendant should not question the competency of
previously Court in the previously instituted suit, and there remains the fact that the plaintiff in their
defense against S.10 CPC, had not stated the Jamshedpur Court is competent. Thus relief was granted
to the defendant.

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National Institute of Medical Health and Neuro Sciences v. C Parameshwara AIR 2005 SC 242
Facts: The respondent was a Senior Pharmacist at the institute, in this case being the appellant. The appellant
sued the respondent for misappropriation of drugs to the tune of almost Rupees one lakh eighty thousand. For
the same, an enquiry officer was appointed, who submitted a detailed report. After going through the report, the
director of the institute removed the respondent from service. Being aggrieved, the respondent moved the Labor
Court, which set aside the removal. The appellant being aggrieved by the Labor Court’s decision filed a writ
regarding the same. On the other hand, the appellant also sued the respondent in the Civil Court to recover the
damages.
Judgment: The HC observed that since the writ petition filed by the appellant against the award of the Labor
Court was pending in the HC, and since the HC was superior to the Civil Court, it was desirable that the decree
of the Civil Court stay. The SC overruled this judgment, since the scope of both the cases in the Labor Court as
well as Civil Court were different, and allowed the appeal.

Indian Bank v. Maharashtra State Cooperative Marketing Federation Ltd. AIR 1998 SC 1952:
In this case, the SC discussed at length whether the bar contained in section 10 applies to a summary
suit filed under Order 37 of the CPC –
The word ‘trial’ in Section 10 in the context of summary suit cannot be interpreted to mean the entire
proceedings starting with institution of the suit by lodging a plaint. In a summary suit the ‘trial’ really begins
after the Court or the judge grants leave to the defendant to contest the suit. Therefore, the Court or the judge
dealing with the summary suit can proceed up to the stage of hearing the summons for judgment and passing
the judgment in favor of the plaintiff if:
(a) The defendant has not applied for leave to defend or if such application has been made and refused or if,
(b) The defendant who is permitted to defend fails to comply with the conditions on which leave to defend is
granted.
Judgment: Held that the object of prohibition in S.10 CPC, is to:
 Prevent Courts of concurrent Jurisdiction from simultaneously trying two parallel cases.
 Avoid inconsistent findings on the matter in issue.

PRINCIPLES SET OUT BY THE JUDICIARY

Harish Chandra v. Triloki Singh AIR 1957 SC 444

The Apex Court had held that the word ‘trial’ has not been used in its widest sense in this section.
However, the nature and object of the provision, as well as the context in which it is used decide whether the
section shall be construed in a narrow sense or its widest sense.

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Arun General Industries v. Rishabh Manufacturers Pvt. Ltd. AIR 1972 Cal. 128
The Calcutta High Court held herein that section 10 not only applies to the trial of the suit but also to all
proceedings therein.

Indian Bank v. Maharashtra State Cooperative Marketing Federation Ltd. AIR 1998 SC 1952
The Apex Court observed in this case that the course of action that the Court has to follow is not to
proceed with the ‘trial’ of the suit. But, that does not mean that it cannot deal with the subsequent suit anymore
or for any other purpose. It also stated that the word ‘trial’ in this section has not been used in its widest sense.

Pukhraj D. Jain v. G. Gopalakrishna AIR 2004 SC 3504

The Apex Court held in this case that the object of the section is to prevent courts having concurrent
jurisdiction from trying two parallel suits, at the same time, with respect to the same matter. This section acts as
a mere rule of procedure, and a decree passed in its contravention, is therefore not a nullity.

Manohar Lal v. Seth Hiralal AIR 1962 SC 527

In this case, the Apex Court observed that the provisions of this section are clear, definite and
mandatory. The court, in which a subsequent suit has been filed, is prohibited from proceeding with that suit in
certain circumstances. The provisions of section 10 do not become inapplicable to the court, even if the
previously instituted suit was vexatious or is in violation of the terms of a contract.

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Chapter 4: Comparative Study

DIFFERENCE BETWEEN RES SUB JUDICE AND RES JUDICATA

Often people confuse the concepts of res sub judice and res judicata. Res sub judice is
discussed in S. 10 and applies to a date of institution of suit. S.11 of the CPC and is a matter
adjudicated upon and applies to the date of adjudication.

The difference between Res-Sub judice and Res- Judicata are as Follows: -
1. In case of Res Sub Judice, there must be two suits, one previously instituted where as incase
of Res- Judicata there must be an end to litigation.

2. In case of Res Sub Judice, the matter in issue in both the suits must be substantially the same.
On the other hand, the matter directly and substantially in issue in the subsequent suit must
have been directly and substantially in issue in the former suit either actually or constructively.

3. In case of Res Sub Judice, the previously instituted suit must be pending in the same court in
which the subsequent suit was brought or in a different court having jurisdiction to grant the
relief claimed. On the contrary, the former suit must have been a suit between the same parties
or between parties under whom they or any of them claim.

4. In case, of Res Sub Judice, such parties must be litigating in both the suits under the same title.
In case of Res Judicata, such parties must have been under the same title in the former suit.

5. In case of Res Sub Judice, both the suits must be between the same parties or their
representatives. On the other hand, a final decision of a concrete issue between parties.

THE DOCTRINE OF RES SUB JUDICE IN OTHER COUNTRIES

In England and Wales, Ireland, New Zealand, Australia, South Africa, Bangladesh, India,
Pakistan, Canada, Sri Lanka and Israel it is generally considered inappropriate to comment publicly
on cases sub judice, which can be an offence in itself, leading to contempt of court proceedings. This
is particularly true in criminal cases, where publicly discussing cases sub judice may constitute
interference with due process.

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In English law, the term was correctly used to describe material which would prejudice court
proceedings by publication before 1981. Sub judice is now irrelevant to journalists because of the
introduction of the Contempt of Court Act 1981. Under Section 2 of the Act, a substantial risk of
serious prejudice can only be created by a media report when proceedings are active. Proceedings
become active when there is an arrest, oral charge, issue of a warrant, or a summons.

In the United States, there are First Amendment concerns about stifling the right of free
speech which prevent such tight restrictions on comments sub judice. However, State Rules of
Professional Conduct governing attorneys often place restrictions on the out-of-court statements an
attorney may make regarding an ongoing case. Furthermore, there are still protections for criminal
defendants, and those convicted in an atmosphere of a media circus have had their convictions
overturned for a fairer trial.

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Chapter 5: Conclusion & Suggestion

STUDENT’S FINDINGS

 The researchers found out that there are some basic conditions which have to fulfill anyway:
1. Two suits – Previously Instituted and Subsequently Instituted
2. Matter in issue in subsequent suit – directly and substantially in issue in previous suit
3. Both suits between same parties or their representatives
4. Previous suit must be pending in same or in any other court in India
5. The court dealing with previously instituted suit competent to grant relief claimed in
subsequent suit
6. Parties litigating under the same titles in both the suit.

 The word ‘shall’ in the section makes it mandatory and the moment court finds that the above
conditions are satisfied, the court will not proceed with the subsequently instituted suit, that is,
the court will stay with the proceeding of subsequent suit. The court have inherent power under
section 151 of the Code and using it, the court may stay or consolidate the proceedings, but it is
not mandatory and it depends upon the discretion of the court, whereas if the condition so
mentioned is satisfied under section 10, the court has to mandatorily stay the subsequent suit.

 However, in the light of the explanation to section 10, there is no bar on the power of an Indian
court to try a subsequently instituted suit if the previously instituted suit is pending in the pending
in a foreign court.

SUGGESTIONS:

 The purpose of the section is to bring finality in the judgment and to avoid the contradictory
decision by the two different court, as there is a very good possibility that in case when matter is
simultaneously being decided by different courts of concurrent jurisdiction, the courts may come
up with different decisions and then it will be very difficult to finalize which decisions to be
abided by.

 The objective to prevent courts of concurrent jurisdiction from simultaneously entertaining and
adjudicating upon two parallel litigations in respect of same cause of action, the same subject-

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matter and the same relief, this section is provided in the Code. However, this rule only applies
to trial of a suit and not the institution thereof which is a aspect which should be modified.

 The policy of law is to confine a plaintiff to one litigation so as to protect a person from
multiplicity of proceedings and also to avoid a conflict of decisions by courts in respect of same
relief. This still makes the court too lengthy and takes a long duration.

 The amount of clarity given to distribution of powers between Central and State
governments made under the constitution is commendable of a ‘suggestion’ for the
researchers to give. The fact that the project merely states the provision and does not go
into in depth analysis of appropriateness of the provisions

DRAWBACKS IN THE LEGAL FRAMEWORK

 Globalization and inter-connectivity in the world has brought with itself an increase in trans-
national transactions between individuals and corporations. Often, it so happens that the court
exercising jurisdiction over the case is different from the one where the relief granted is to be
executed. Therefore, an increase in the number has led to a formidable question on the
enforcement and execution of a judgment passed by a foreign court within the territory of India.

 The Indian Civil Procedure Code provides for the execution of decrees and judgments passed by
foreign courts. Although, at the time of adoption of the code no such need to execute foreign
decrees was felt as India was under the dominion of the imperialistic state of Britain.

 In this modern and globalized world, the concept of reciprocity has hindered the execution and
enforcement of decrees passed by the foreign courts in India.

 Diplomatic objectives of the Indian Government has choked the Code of Civil Procedure with
unnecessary provision and requirements. Non-recognition of foreign territory as a reciprocating
country has led to failure of appreciating the orders and judgments passed by its courts even if it
meets the parameters of defined under Section 13.
 The Indian Government must ensure that certain amendments are made on these fronts such that
execution and service of foreign decrees and documents can be smoother, more cost-effective
and less time consuming.

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 CIVIL PROCEDURE CODE

References & Bibliography

BOOKS
1. Black’s Law Dictionary (9th Standard edition).
2. All India Reporter (AIR).
3. Bluebook (19thEd.) Citation method.
4. Civil Procedure code with Limitation Act, 1963 by C.K. Takwani, Eastern Book Company.
5. Civil Procedure Code Bare Act, Universal Publication.

ONLINE ARTICLES & JOURNALS

1. https://indiankanoon.org/search/?formInput=res%20sub%20judice as on April 21, 2016.
2. http://www.lawnotes.in/Res_sub_judice as on April 21, 2016.
3. http://www.caclubindia.com/experts/res-judicata-vs-res-sub-judice-839725.asp as on April 22,
2016.
4. http://www.assignmentpoint.com/arts/law/the-code-of-civil-procedure-1908-lecture-03.html as
on April 22, 2016.
5. http://www.legalserviceindia.com/article/l454-Res-Judicata.html as on April 23, 2016.
6. http://www.legalservicesindia.com/article/article/res-judicata-a-brief-study-1498-1.html as on
April 23, 2016.
7. http://www.legalservicesindia.com/article/article/res-sub-judice-res-judicata-and-constructive-
res-judicata-1782-1.html as on April 24, 2016.
8. https://indiankanoon.org/search/?formInput=section%2010%20cpc+doctypes:supremecourt as
on April 24, 2016.
9. http://www.vakilno1.com/bareacts/laws/civil-procedure-code-1908.html as on April 25, 2016.
10. http://www.lawteacher.net/free-law-essays/constitutional-law/res-judicata-and-code-of-civil-
procedure-constitutional-law-essay.php as on April 26, 2016.
11. https://archive.org/stream/178395891CPCResJudicata/178395891-CPC-Res-Judicata_djvu.txt
as on April 27, 2016.
12. http://studentlawnotes.blogspot.in/2012/12/res-sub-judice-s10-cpc.html as on April 28, 2016.
13. http://judicialservice.blogspot.in/1998/05/whether-bar-contained-in-s10-of-cpc-is.html as on
April 29, 2016.

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