ANALYZING THE DOCTRINE OF RES SUB JUDICE

(Project for the assessment in the subject of Civil Procedure Code and the Law of Limitation)

Authors: Mark Tripathi (Roll No.: 1911)

Ainesh Chaudhary (Roll No.: 1851)

 ACKNOWLEDGEMENT

At the outset, the authors would sincerely like to thank our Code of Civil Procedure
professor, Mr. Amitesh Deshmukh, without whose constant help and guidance, it would not
have been possible for this project to see fruition. We would also like to extend our gratitude
to the administration for providing online library access for undertaking this task.
 TABLE OF CONTENTS

S. No. Particulars Page No.

1. LIST OF CASES 4

2. LIST OF STATUTES 4

3. RESEARCH METHODOLOGY 5
4. ABSTRACT 6
5. INTRODUCTION 7

6. RES SUB JUDICE IN INDIA 9

7. CONCLUSION 12

8. BIBLIOGRAPHY 13
 LIST OF CASES

1. S.P.A. Annamalay Chetty v. B.A. Thornhill (AIR 1931 PC 263)

2. Pannaji Devichand v. Sennaji Kapurchand (AIR 1922 Bom. 276)
3. Ram Bahadur Thakur & Co. vs Devidayal (Sales) Ltd. (AIR 1954 Bom 176)
4. National Institute of Mental Health & Neuro Sciences v. C. Parameshwara (AIR 2005
SC 242)
5. Dr. Guru Prasad Mohanty & Ors. v. Bijoy Kumar Das (AIR 1984 Ori 209)
6. Aspi Jal & Anr. v. Khushroo Rustom Dadyburjor (Civil Appeal No. 2908 of 2013)
7. Maharashtra State Co-Operative v. Indian Bank, Bombay (AIR 1997 Bom 186)
8. Anurag And Co. And Anr. v. Addl. Dist. Judge & Ors. (AIR 2006 Raj 119)

LIST OF STATUTES

1. Code of Civil Procedure, 1908 (Act 5 of 1908)

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 RESEARCH METHODOLOGY

Scope and Focus

This project focuses on the doctrine of Res Sub Judice, and its relevant provision, namely
Section 10 of the Code of Civil Procedure, 1908, as well as some important cases which deal
with this subject in the Indian context. In order to provide a greater understanding of this
concept, the authors have tried to break down the doctrine of Res Sub Judice into its various
nuances, such as its nature, objective, exceptions, essential criteria, inherent powers of the
court, among other things.

Objectives

- To understand the concept of Res Sub Judice.

- To examine the application and operation of Section 10 of the Code of Civil
Procedure, 1908.
- To analyse cases taken up with respect to the doctrine of Res Sub Judice in India.

Methodology

The methodology used for this project is doctrinal research with the help of books, articles,
case laws, etc.

Sources of Data

For this project, data has been obtained from primary sources such as case studies, articles,
statutes, online databases, etc.

Division into Parts

This project has been divided into three parts:

A. INTRODUCTION: This part seeks to introduce and analyse the doctrine of Res Sub
Judice, and to explain its provision under the Code of Civil Procedure, 1908, and its
various aspects.
B. RES SUB-JUDICE IN INDIA: This part aims to deal with the analysis of some
cases which touch upon the doctrine of Res Sub Judice in the Indian context.
C. CONCLUSION: This part gives a brief summary of what the project has sought to
achieve with a brief reiteration of the doctrine of Res Sub Judice.

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 ABSTRACT

The Doctrine of Res Sub Judice, which basically states that when a suit is already going on in
a court that is competent to try the same and also to grant the relief that has been prayed for,
a parallel litigation or case cannot be instituted by the same parties or a suit on the basis of
the same subject matter as the earlier case, is an essential part of the Code of Civil
Procedure, 1908. In such an event, courts have the power to stay the case. The aim of this
doctrine is to prevent multiplicity of cases. Through this project, the authors seek to analyze
the doctrine of Res Sub Judice, as enshrined in Section 10 of the Code of Civil Procedure
1908. The project will also delve into significant cases and judgements that have in the
Indian context of this doctrine, like National Institute of Mental Health & Neuro Sciences v.
C. Parameshwara, the case of Aspi Jal and Anr V. Khushroo Rustom Dadyburjor among
others.

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 A. INTRODUCTION

What is Res Sub Judice?

Res Sub Judice (Latin for “under judgement”) is a doctrine that deals with the stay of suits. It
comes into operation to prevent the trial of a suit that is already under trial or is pending
before another court of competent jurisdiction, provided that it is between the same litigants
and concerning the same matter in issue, in order to prevent courts of concurrent jurisdictions
to entertain parallel litigations in the same issue.

Provision of Res Sub Judice

The provision of Res Sub Judice is given under Section 10 of the Code of Civil Procedure,
19081 (hereinafter ‘CPC’). According to this Section, “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 have 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.” However, the explanation of this provision states
that “the pendency of a suit before a foreign court does not preclude courts in India from
trying a suit founded on the same cause of action.”

Nature of Res Sub Judice

The doctrine of Res Sub Judice serves to prevent parallel litigations in a suit concerning same
parties and the same matter in issue. In essence, this is designed to prevent contradictory
judgements, protection of litigants from harassment, reduce the burden on courts, avoid
unnecessary delays and wastage of courts’ time and resources. 2

An important part to note is that this rule is applicable to the trial of the suit and not the
institution. It does not restrict the court from passing interim orders like injunction or stay. It
applies to revisions and appeals. 3

1
The Code of Civil Procedure, 1908 (Act 5 of 1908)
2
What is the rule of Res Sub Judice under CPC? available at: https://lawcirca.com/what-is-the-rule-of-res-sub-
judice-under-cpc/ (Visited on August 10, 2021)
3
Res Sub-Judice under CPC: Nature, Scope and Objective, available at: https://blog.ipleaders.in/res-sub-judice-
under-cpc-nature-scope-and-objective/ (Visited on August 10, 2021)

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However, as far as suits in foreign courts are concerned, they can be instituted in compliance
with jurisdictional limits, and the same case can also be instituted in Indian courts if the
matter needs judgement in accordance with Indian law, and this should also be done while
keeping jurisdictional limits in mind.4

In S.P.A Annamalay Chetty v. B.A. Thornhill,5 it was observed that the doctrine of Res Sub-
Judice protects the litigant from unnecessary harassment.

Conditions to invoke Res Sub-Judice

In order to attract the provisions under Section 10 of the CPC, the following conditions must
be met6:

- There must be two suits, one previously instituted and the other subsequently
instituted.
- The matter in issue in the subsequent suit must be directly and substantially in issue in
the previous suit.
- The suits must be between the same parties or their successors.
- The previously instituted suit must be pending in the same court in which the
subsequent suit is brought or in any other court in India or in any Central Government
or before the Supreme Court.
- The court in which the previous suit is instituted must have jurisdiction to grant the
relief claimed in the subsequent suit.
- Such parties must be litigating under the same title in both the suits.

However, it is established that the doctrine of Res Sub-Judice applies to the trial of a
subsequent suit and not to its institution. This means that any interim order passed or relief
granted can be considered as an exception to this doctrine. This was also laid down in the
case of Pannaji Devichand v. Sennaji Kapurchand.7 Also, any order or decree passed to that
effect, in contravention of Section 10 of CPC, are not null and void. However, any rights
conferred on the parties of such suits through these decrees can be waived by them. 8

4
Res Subjudice Under CPC, available at: https://www.legalserviceindia.com/legal/article-4121-res-subjudice-
under-cpc.html (Visited on August 10, 2021)
5
S.P.A. Annamalay Chetty v. B.A. Thornhill (AIR 1931 PC 263)
6
Res Sub Judice: Object, Scope and Application, available at: https://www.legalbites.in/res-sub-judice/#_ftn13
(Visited on August 10, 2021)
7
Pannaji Devichand v. Sennaji Kapurchand (AIR 1922 Bom. 276)
8
Supra note 3

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Inherent Power of Court to Stay Suits

Section 151 of the CPC grants the Courts the power to stay the suits or its proceedings based
on the various elucidated facts to make the ends of justice meet. 9 This enables the courts to
exercise their inherent power to stay a suit irrespective of whether warranted by Section 10 of
CPC.

In Ram Bahadur Thakur & Co. vs Devidayal (Sales) Ltd.10, it was held that Section 151 of the
CPC can be used to stay the previously instituted suit, if it is felt that doing so would be in the
interest of justice, thus overriding Section 10 of CPC.

B. RES SUB-JUDICE IN INDIA

It would be pertinent to analyse certain case laws that deal with the doctrine of Res Sub-
Judice in the Indian Context:

National Institute of Mental Health & Neuro Sciences v. C. Parameshwara 11

In this case, there were substantial issues revolving around whether a previous suit filed
under Section 10 read with Section 151 of the CPC seeking a stay of civil suit was
maintainable.

It was held that “the object of Section 10 is to prevent courts of concurrent jurisdiction from
simultaneously trying two parallel suits between the same parties in respect of the same
matter in issue…The key words in Section 10 are “the matter in issue is directly and
substantially in issue” in the previous instituted suit. The words “directly and substantially in
issue” are used in contradistinction to the words “incidentally or collaterally in issue.”12

As such, the case went on to establish that the doctrine of Res Sub-Judice, or a stay of suit,
would not be attracted if two suits, which are parallelly instituted by the same parties, have
different matters in issue. Also, the court held that the provisions of Section 151 of CPC
cannot be exercised to nullify the provisions of the code.13

9
Supra note 4
10
Ram Bahadur Thakur & Co. vs Devidayal (Sales) Ltd. (AIR 1954 Bom 176)
11
National Institute of Mental Health & Neuro Sciences v. C. Parameshwara (AIR 2005 SC 242)
12
Supra note 11
13
Case Analysis: National Institute of Mental Health & Neuro Sciences v. C. Parameshwara, available at:
https://www.casemine.com/judgement/in/5609adf2e4b01497114129be (Visited on August 11, 2021)

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Guru Prasad v. Bijoy Kumar14

In this case, it was laid down that, “…After all, Section 10 of the CPC merely lays down a
procedure and does not vest any substantive right in the parties. The object of the said section
is to prevent Courts of concurrent jurisdiction from simultaneously entertaining and
adjudicating upon two parallel litigations in respect of the same cause of action the same
subject matter and the same relief. The policy of the law is to obviate the possibility of two
contradictory verdicts by one and the same Court in respect of the same relief.”

Thus, the court did not preclude any other method of adjudicating upon a suit, in the interest
of justice. Therefore, it is important to note that the doctrine of Res Sub Judice merely lays
down a procedure that has to be followed by the court. It is not an inherent, absolute right of
the party to get an order to stay the suit. 15

Aspi Jal & Anr. v. Khushroo Rustom Dadyburjor16

In this case, the applicants who claimed to own a building filed a suit for eviction from
tenanted premises against the defendant before the Small Causes Court on the ground of bona
fide requirement and acquisition of alternative accommodation by the defendant. 17 Soon
after, another suit was filed by the plaintiffs in the Small Causes Court for eviction of the
defendant on the ground of non-user for several years before the institution of the suit. During
the course of pendency of the two previous suits, the plaintiffs filed yet another suit for
eviction of the defendant on the ground of non-user for a continuous period of not less than
six months immediately prior to the institution of the suit. An application was filed by the
defendant for stay of hearing of the third suit till final disposal of first and second suits, under
Section 10 of CPC. The trial court found that the subject matter in issue was similar in the
second suit and the third suit, thereby warranting a stay of suit under the doctrine of Res Sub
Judice.

Maharashtra State Co-Operative v. Indian Bank, Bombay18

14
Dr. Guru Prasad Mohanty & Ors. v. Bijoy Kumar Das (AIR 1984 Ori 209)
15
Supra note 6
16
Aspi Jal & Anr. v. Khushroo Rustom Dadyburjor (Civil Appeal No. 2908 of 2013)
17
Case Analysis: Aspi Jal & Anr. v. Khushroo Rustom Dadyburjor, available at:
https://www.casemine.com/judgement/in/56b48e96607dba348fff6018 (Visited on August 12, 2021)
18
Maharashtra State Co-Operative v. Indian Bank, Bombay (AIR 1997 Bom 186)

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In this case, the question of the applicability of Res Sub Judice to summary suits under Order
XXXVII of CPC was considered. The defendant filed a summary suit against the plaintiff for
the recovery of a particular sum. The plaintiff objected to this, and sought a stay of suit as the
matter was directly and substantially in issue in a previous suit which was still pending. The
Court held that where the matter is ongoing before the appropriate court and the subject
matter is directly and essentially the same in a previously launched suit between the same
parties, the Civil Court should not proceed with the trial of the complaint in order to give the
relief sought.19

It was held that, “In view the above the discussion, we are of the clear of opinion of that
Section 10 is also applicable to the summary suits which are to be tried by the special
procedure the laid down in Order XXXVII of the CPC.”

Anurag And Co. & Anr. v. Addl. Dist. Judge & Ors.20

In this case, a matter was pending before the Additional District Judge, Sikar, where four
civil suits were filed by the plaintiffs against a common defendant, with the objective of
recovering different amounts, due on different dates and for four different plaintiffs. To this
effect, the defendant issued a prayer for the consolidation of these suits. However, it was held
by the Additional District Judge that these matters could not be consolidated solely because
the defendant was common. The cause of action, the plaintiffs, and the amount to be
recovered were different in each suit. 21

When heard at the Rajasthan High Court, it was observed that “the whole object behind
consolidation is to avoid multiplicity of proceedings and to prevent delay and to avoid
unnecessary cost and expenses and further to avoid conflict in the findings/judgments in case
of complete or even substantial and sufficient similarly of the issues arising for decision.”

However, it was held that since the plaintiffs in question were not the same parties and the
matters in issue were not similar, there was no error by the Additional District Judge in not
consolidating the matters.

19
Scope of Res Sub Judice: analysis with case laws, available at: https://blog.ipleaders.in/scope-res-sub-judice-
analysis-case-laws/ (Visited on August 12, 2021)
20
Anurag And Co. And Anr. v. Addl. Dist. Judge & Ors. (AIR 2006 Raj 119)
21
Supra note 19

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Therefore, this case has touched upon the necessity of consolidating multiple matters into one
suit in the interest of justice to the parties involved, as well as the relevance of observing the
essential ingredients of attracting the provision of Res Sub Judice.

C. CONCLUSION

The purpose of the provision of Res Sub Judice, as enshrined under Section 10 of the CPC is
to stay a suit if the matter is directly and substantially in issue in a prior suit, which is still
pending before a court of competent jurisdiction and involves the same parties.

This is done in the interest of justice for the parties involved, and to save the time and
resources of the court, as well as to reduce the chances of conflicting or contradictory
judgements. In essence, it serves to avoid multiplicity of proceedings. This is also beneficial
as it not only reduces the caseload, but also prevents the parties to the suit from being
burdened to provide material and evidence to different courts in a matter that is already being
heard.

However, the doctrine of Res Sub Judice operates only to preclude the trial of a suit, and not
its institution. So, any interim order passed, or any interim relief granted is not in
contravention of this doctrine.

The doctrine of Res Sub Judice has got certain exceptions to it, as well. One such anomaly is
that if a matter is pending before a foreign court, the parties also file a suit in the same matter
before Indian courts, without attracting Res Sub Judice, subject to jurisdictional limits. Also,
the CPC confers on the courts certain inherent powers as enshrined under Section 151, which
enables the Court to stay the proceedings in a subsequent suit, even when the essential
ingredients of Section 10 are not entirely fulfilled, or even stay the proceedings of a previous
suit, in order to serve the ends of justice. Similarly, the Court has inherent power to
consolidate different suits between the same parties when the matter in issue is directly and
substantially the same.

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 BIBLIOGRAPHY

1. “What is the rule of Res Sub Judice under CPC?”, dated June 18, 2019, available at:
https://lawcirca.com/what-is-the-rule-of-res-sub-judice-under-cpc/
2. “Res Sub-Judice under CPC: Nature, Scope and Objective”, by Diva Rai, dated
January 21, 2020, available at: https://blog.ipleaders.in/res-sub-judice-under-cpc-
nature-scope-and-objective/
3. “Res Subjudice Under CPC”, by Sujan Ganesh, available at:
https://www.legalserviceindia.com/legal/article-4121-res-subjudice-under-cpc.html
4. “Res Sub Judice: Object, Scope and Application”, by Subham Agrawal, dated March
8, 2020, available at: https://www.legalbites.in/res-sub-judice/#_ftn13
5. “Scope of Res Sub Judice: analysis with case laws”, by Oishika Banerji, dated August
3, 2021, available at: https://blog.ipleaders.in/scope-res-sub-judice-analysis-case-
laws/

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