Doctrine of Res Sub Judice: Section 10 of the CPC

What is Res Sub Judice?

Section 10 of the Code of Civil Procedure, 1908 talks about the doctrine of res sub judice. It deals with the stay of civil suits. It states 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 and that the court in which the previous suit is pending is competent to grant the relief claimed. The mere similarity between the suits would not attract Section 10. This does not bar the courts in India from trying cases on the same cause of action which is pending in a foreign court as given in the explanation to Section 10.

Example Res Sub Judice

Ram and Shyam decide to enter into a contract for the sale of goods. Ram is the seller, and Shyam is the purchaser. Shyam defaulted in paying the amount of the sale to Ram. Ram first filed a suit for recovery of the entire amount in Delhi. Subsequent to this, Ram filed another suit at Gurugram demanding INR 20,000 as an outstanding balance. Since Ram’s first suit and the second suit have issues similar to the first suit, the subsequent suit is liable to be

Nature and Scope of Res Sub Judice

The rule of res sub judice applies only to the ‘trial’ and not the institution of the suit, which means that it is a bar on the court’s power only with respect to ‘trial’, and the court is free to pass interim orders such as stay or injunction, the appointment of a receiver, etc. This also means that the suit cannot be dismissed but only stayed. This is the effect of contravention of Section 10.

In Aspi Jal & Ors. v. Khushroo Rustom Dadyburjor[i], three different suits were filed by the plaintiff on the same subject matter before the Small Causes court. The first suit was filed on the ground of bona fide requirement for self-occupation and acquisition of alternate accommodation by the Defendant, the second suit for the eviction was filed on the ground of non-user for several years before the institution of the first suit, and the third suit was filed on the ground of non-user for a continuous period of not less than six months before the institution of the third suit. The court said that for the application of Section 10, the entire subject matter should be the same. However, the ground for eviction was similar, but the same was based on different causes. Therefore, Section 10 was not attracted. However, if the court is satisfied that a suit can be decided purely on legal points i.e., merits of the subject matter, then it can proceed with the suit.[ii]

In Indian Bank v. Maharashtra State Co-operative Marketing Federation Ltd.[iii], a summary suit was filed while a suit was already pending. The court said that Section 10 bars the courts to not to proceed with the ‘trial’ if there is a previous suit pending, but that does not mean that it cannot deal with the subsequent suit anymore for any other purpose. In a summary suit, the defendant has to file an appearance within ten days of the service of the summons and apply for leave in order to defend the suit, and if he fails to do so, then an ex parte decree can be passed in favor of the plaintiff. A ‘trial’ in a summary suit only begins after the defendant has obtained leave. Therefore, in this case, Section 10 was not attracted. Thus, we can say that the word ‘trial’ has a very narrow meaning, and Section 10 only bars trial, not the entire proceeding.

The object of Section 10 of CPC

The object of the rule of res sub judice is based on public policy. It prevents the multiplicity of suits that can result in contradictory decrees from courts having concurrent jurisdiction on the same subject matter with respect to the same cause of action and same relief. This rule gives effect to the rule of res judicata and protects the parties from the inconvenience, and also saves the resources of the State as multiple suits will also waste the court’s time.

Conditions for Application of Section 10

There must be two or more suits, one previously instituted and the other subsequently instituted.
The subject matter in subsequent suits filed must be directly and substantially similar to the subject matter in issue in the previously filed suit.
Both suits must be between the same parties or between their representatives.
Plaintiff and defendant must be litigating under the same title in both suits, i.e., same capacity.
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 any foreign court established or continued by the Central Government or before the apex court. In Indian Bank v. Maharashtra State Co-operative Marketing Federation Ltd.[iv], a summary suit was filed while a suit was already pending. The court said that the court should not proceed with the ‘trial’ on a subject matter which is already pending before a competent court.
The court in which the previous suit is filed must have jurisdiction to grant the relief which is claimed in the subsequent suit or suits.

It is important that all the above conditions must be fulfilled to stay in the suit.

Test to Determine Whether Section 10 Would Apply or Not

The court in S.P.A. Annamalay Chetty v. B.A. Thornhill[v] said that the test for applicability of the rule of res sub judice is whether the decision in the previously instituted suit would operate as res judicata in the subsequently instituted suit, i.e. if a decree is passed in the first suit and a second suit is filed where the rule of res judicata is applicable, then such a suit is liable to stay.

Court’s Inherent Power to Stay and Consolidate the Suit

Under Section 151 of the CPC, the court has the power to stay the suit to meet the ends of justice even if the conditions of Section 10 are not sufficiently fulfilled, and as stated above, the object of the rule of res sub judice is to prevent conflicting decrees. Thus the court also has the power to consolidate different suits between the same parties where the subject matter in issue is substantially the same.[vi]

Conclusion

The rule of res sub judice is incorporated in the CPC to prevent the parties from causing inconvenience to the opposite party and the court. It is based on the principle of public policy. Where Section 10 of the CPC is applicable, such a suit is not dismissed, and if the decision is passed, it is not a nullity; it depends on the parties whether they want to go with the subsequent suit or not. Once the right is waived off, the validity of the decree passed in the subsequent suit cannot be challenged.[vii]

_______________________________________________________________________________

[i] (2013) 4 SCC 333.

[ii] Pukhraj D. Jain v. G. Gopalakrishna, (2004) 7 SCC 251.

[iii] (1998) 5 SCC 69.

[iv] Ibid.

[v] AlR1931PC263.

[vi] P.P. Gupta v. East Asiatic Co., AIR 1960 All 184.

[vii] Ganga prashad v. Banaspati, AIR 1937 Nag 132.