RES SUB

CIVIL JUDICE AND

RES
PROCEDURE SUBJUDICATA
CODE

SUBMITTED BY : ATISHAY JAIN

ENROLLMENT NO. : A11911115104
SEMESTER 7 , BA.LLB(H)
 ACKNOWLEDGEMENT
I have taken efforts in this project. However, it would not have been possible
without the kind support and help of my teachers and friends. I would like to
extend my sincere thanks to all of them.
I am highly indebted to Neelma Ma’am for her guidance and constant supervision
as well as for providing necessary information regarding the project & also for
her support in completing the project.

I would like to express my gratitude towards my parents for their kind co-
operation and encouragement which help me in completion of this project.
 INTRODUCTION

The first provisions related to avoiding multiplicity of suit starts with the provision of the
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.
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.

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.
To trace the source and development of the doctrine in the Indian legal system.

4. To find out the power of courts in interpretation of cases involving this section.
5. To identify the principles and provisions adopted by the courts in India in relation to
S.10 of CPC.
6. To study the Civil provisions relating to Stay of Suits.
7. To study these provisions in the present legal framework and to examine the issues and
challenges faced by it.
 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

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

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
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.
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, or even where
there are some issues in common and others are different issues. 5 This section is also not
applicable between the suits where although the parties are same, but the issues are not the
same.6
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.
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.7

INHERENT POWER TO STAY

5
Abdur Vs. Asrafun, 37 DLR 271.
6
Manzar Vs. Rema. 33 DRL 49
7
S.P.A- Annamalay Chetty vs. B.A. Thornlill AIR 1931 PC 263
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.8 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.9 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.
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 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

8
Suraiya Vs Alimullah. 24 DLR 133, Ayat Ali Bhuyan Vs. Janata Bank, 40 DLR 56;
9
Ram Vs. Devidayal, AIR 1954 Bom. 176.
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.

Role of the 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.

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.

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.

COMPARITIVE 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.

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.

Conclusion

 I 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.