DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW

2017-18

CIVIL PROCEDURE CODE

FINAL DRAFT ON
SECTION 10- RES SUB JUDICE

Submitted by – Submitted to –

Mohd Abushad Dr. Vipul Vinod

B.A.LLB (Hon) Assistant Professor (law)

Semester IV

Enrollment no. 160101100

 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.
 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.
 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

1
S. 10 of the CPC, 1908.
 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

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
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:

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
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.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 –

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
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.

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.

11
Ram Vs. Devidayal, AIR 1954 Bom. 176.
12
Explanation of S. 10 of the CPC, 1908
 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 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 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.

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.
 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.

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

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.
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.