Res Sub Judice

By | September 15, 2016

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. This doctrine of res-sub judice is embodied in section 10 of the Civil Procedure Code

Section 10: Stay of Suit

This section lays down that 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 of India.

Explanation to section 10 provides that 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.

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.

However, this section can only be applied if the following condition are satisfied.

  1. There must be two suits, one instituted previously and the other subsequently.
  2. The matter in issue in the subsequent suit must be directly and substantially the same as like that of the previous suit.
  3. The suits must be between the same parties or their successors or representatives in interest.
  4. The previously instituted suit must be pending in the same court or in any other court in India or in any court beyond the limits of India established or continued by the Central Government or before the Supreme Court.
  5. The court in which the previous suit is instituted should be competent to grant relief in that suit as well as in the subsequent suit.
  6. The parties must be litigating in both the suits under the same title.

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 the proceeding of the 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.

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.

Mayank Shekhar
Author: Mayank Shekhar

Mayank is a student at Faculty of Law, Delhi University. Under his leadership, Legal Bites has been researching and developing resources through blogging, educational resources, competitions, and seminars.

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