Introduction
Section 10 of the Code of Civil Procedure, 1908 deals with the principle of res sub judice. The principle bars the trial of a subsequent 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.
The rule applies to trial of a suit and not the institution thereof. It also does not preclude a court from passing interim orders, such as the grant of injunction or stay, the appointment of a receiver, etc. It, however, applies to appeals[1] and revisions.[2]
Object
The object of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same cause of action, same subject-matter and same relief.[3] The institution of the second suit is not barred, though the trial thereof may not be proceeded with. Furthermore, section 10 authorizes only stay of the proceedings and not the dismissal of the proceedings.[4]
The keywords in Section 10 are “the matter in issue is directly and substantially in issue in a previously instituted suit.” Hence, when the matter in controversy is the same, then only Section 10 applies. When it is different, the section has no application.[5]
In Guru Prasad v. Bijay Kumar[6], the court held that the does the rule prevent the courts from following any other procedure to adjudicate the suit together which would serve the ends of justice. Thus, it is fundamental to note that the rule of res sub judice merely lays down a procedure that has to be followed by the court, it is not an inherent legal right of the party i.e. it does not mean that getting the order of staying the suit is an absolute right of the party.
The object of the said section is to prevent courts of concurrent jurisdiction from simultaneously adjudicating upon two parallel litigations in respect of the same issues and the same relief. The policy of the law is to eliminate the possibility of two contradictory verdicts. If consolidation of two suits helps generate the same underlying principle, it would not in any way hinder the policy behind the doctrine of res sub judice.
The section intends to protect a person from the multiplicity of proceedings and avoid a conflict of decisions.[7] It also aims to avert inconvenience to the parties and give effect to the rule of res judicata.
Scope
The stay of a suit as envisaged under section 10 relates to the trial and not the proceedings. The court which has stayed the suit would not lose its control over the suit or proceedings and it continues to administer the said suit including the proceedings except to the extent of laying its hands for conducting the trial.[8]
Conditions
For attracting the provisions of Section 10, the following conditions must be fulfilled:
- 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.
As soon as the above conditions are satisfied, the court shall not proceed with the subsequently instituted suit. Since the provisions contained in Section 10 are mandatory, and no discretion is left with the court.[9] It is, however, necessary that for Section 10 to be attracted it is essential that entire subject-matter in controversy must be the same between the previous suit and subsequent suit would not be sufficient.[10] The order staying proceedings in the subsequent suit can be made at any stage.[11]
The Gujarat High Court in Sohal Engg Works v. Rustain Jehangir Vakil Mills,[12] held that Section 10 would apply only if the whole of the subject-matter in both the suits is identical, and not merely where only one of many issues in the two suits is identical.
Res judicata and res sub-judice
The doctrine of res judicata differs from res sub-judice in two aspects:
- Whereas res judicata applies to a matter adjudicated upon (res judicatum), res sub judice applies to a matter pending trial (sub-judice); and
- Res judicata bars the trial of a suit or issue which has been decided in a former suit, res sub judice bars trial of a suit which is pending decision in a previously instituted suit. Read More…
Suit Pending in a foreign court
Explanation to Section 10 provides that 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 a foreign court.[13]
Inherent power to stay
Even where the provisions of Section 10 of the code do not strictly apply, a civil court has inherent power under Section 151 to stay a suit to achieve the ends of justice.[14] Similarly, a court has inherent power to consolidate different suits between the same parties in which the matter in issue is substantially the same.[15]
Contravention
A decree passed in contravention of Section 10 is not a nullity, and therefore, cannot be disregarded in execution proceedings[16]. Again, as stated above, it is only the trial and not the institution of the subsequent suit which is barred under this section. 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.
Interim orders
An order of stay of a suit does not take away the power of the court from passing interim orders. So, in a stayed suit, it is open to the court to make interim orders, such as attachment before judgement, temporary injunction, the appointment of a receiver, amendment of a plaint or written statement, etc.[17]
Res Sub-Judice and Lis pendens
Generally, Res sub-judice means, there must not be two suites under trial at the same time between the same parties on same subject matter for the same cause of action in two deferent compatible courts, the court must in this situation stay the later filed suit. This above-stated procedure is called Res sub-judice.
And, Lis pendens means, during the pendency of any suit or proceeding in any court which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose according to Section 52 of the Transfer of Property Act,1882.
Here we can see that Lis pendens prevent the sail of Immovable property when the suit is under trial and, Res Sub-judice prevents run multiple suits at the same time with same parties, subject matter and the same cause of action in different compatible courts.
[1] Raj Spinning Mills v. A.G. King Ltd., AIR 1954 Punj 113
[2] Vaithilinga Pandara Sannadhi, Re, AIR 1930 Mad 381
[3] Karnal Distillery Co Ltd v. LP Jaswal, AIR 1951 Punj (SImla) 275
[4] Asharfi Lal Ramdeo v. Ganeshi Ram Jagarnath, AIR 1952 All 546
[5] Aspi Jal v. Khushroo Rustom Dadyburjor, (2013) 4 SCC 333
[6] AIR 1984 Ori 209
[7] S.P.A. Annamalay Chetty v. B.A. Thornhill, AIR 1931 PC 263
[8] Ranju Ram v. Nand Lal, AIR 2011 HP 35
[9] Manohar Lal Chopra v. Seth Hiralal, AIR 1962 SC 527
[10] Indian Bank v. MS Co-op Marketing fedn Ltd., AIR 1988 SC 1952
[11] Life Pharmaceuticals (P) Ltd. V. Bengal Medical Hall, AIR 1971 Cal 345
[12] AIR 1981 Guj. 110
[13] Ladi Prashad v. Karnal Distillery Co Ltd, AIR 1954 Punj 94
[14] Jado Rai v. Onkar Prasad, AIR 1975 All 413
[15] P.P Gupta v. East Asiatic Co., AIR 1960 All 184
[16] Pukhraj D. Jain v. G. Gopalakrishna, (2004) 7 SCC 251
[17] Indian Bank v. Maharashtra State Coop. Mktg. Federation Ltd. (1998) 5 SCC 69
