Res Sub Judice

Introduction

In order to run administration smoothly, every government enacts certain rules and regulations which must be obeyed not only by all the persons who live within the territorial boundary of the country but also by the government. These rules and regulations originate from Acts of Parliament and in legal terminology such rules and regulations are called Law and this law only helps in getting justice by its rules and regulations. In India, before 1859, there was no uniform law of procedure as the courts in the Presidency towns were governed by their own rules and orders. Very often, even in the same region, different systems of procedure prevailed, for example in Bengal alone, there were as many as nine different systems of procedure simultaneously in force. In 1859, the first Civil Code was passed, however that code was applicable only to Mofussil Courts and not to Supreme Courts in presidency.

But later on it was applicable on Supreme Courts and all the other courts even amendments were also made in it. Now, finally the Code of 1908 that is Code of Civil Procedure, 1908 which received the assent of the Governor General on 21st March, 1908, and came in force with effect from 1st January 1909[1]. This code was amended many times and it is a procedure designed to facilitate justice, it is not a penal enactment. It is general law and applies to proceedings of the Civil Courts, it is applicable where the special and local law are silent and it contains a number of procedures regarding plaint, appeals and it also includes doctrines which work in order to make these burdens of cases low.  CPC is a collated code incorporating various laws in its sphere, it falls into the category of adjective law.

India is known to be a vast country and there are a number of people living in it one of the problems faced by Indian Judiciary for many years is overburdening cases and its pendency. With a large number of pending cases, the Indian judiciary is overburdened. In a situation like this, when two suits arising out of the same issues between the same parties are brought before the court, there is going to be wastage of resources and frivolous litigation. For such a situation, our legal system provides us with the doctrine of “Res Sub Judice”.

One of the Yardsticks of Assessing the Functioning of the courts is to assess the ‘Judicial Efficiency’. It not only depends on the working of the judges and the courts, but it also depends on the rights implementation and doctrines, which focuses in increasing the scope of getting justice in the court of law. The main purpose of these doctrines assess the Judicial Efficiency and ensure that the productive pace of getting justice is maintained and achieved from it. One of the doctrines which prevent courts and protect the parties from entertaining and adjudicating on two different litigations but which are having the same cause of action, same subject matter and same relief claimed.

Res Sub judice consists of two Latin words which ‘Res’ means a thing or matter and “Sub judice” means ‘under judgment’. The Oxford Dictionary defines ‘Sub judice’ as a matter under judicial consideration and therefore prohibited from public discussion elsewhere[2]. In other words, if a matter is pending before a court that same matter cannot be taken before another court until it is pending. It is a concept associated with the stay of the suit, its main principle is to prohibit the trial of two parallel litigation in respect of the same cause of action subject matter and also between the same parties. This doctrine bars a trial on certain conditions but does not prevent the institution of subsequent suit.

This section mandates the prohibition of proceeding with the trial of the suit when the matter in issue in both the suits between the same parties, but it is necessary that the title claimed in both the suits is also the same. This section does not reflect upon exactly identical issues between the two suits. For this section to prevail, it will be enough if the identity of the issue and the matter in issue is substantially the same.

 This section clearly bars the trial of a subsequently instituted suit whose decision is pending, the subsequent suit shall have stayed upon the request of any party even the opening of section also stated it” No Court shall proceed with the trial of any suit”. The Civil Procedure Code provides rules in respect of the doctrine of Res Sub Judice and it is quite clear from the language of section that this rule applies to trial of a suit, not to the institution of suit.[3]

Nature, Scope and Object of the Doctrine

As we know this doctrine prevents the court from proceeding with the trial of any suit in which the matter in issue is however the same either directly or substantially with respect to the previous suit which is still pending in court of law. The Scope of the doctrine is wide as the provisions of Section 10 are clear, definite and mandatory. [4]A court in which a subsequent suit is filed is prohibited from proceeding with the trail of that suit. Thus under section 10 the court is prohibited from the concurrent jurisdiction from simultaneously, trying two parallel cases in respect of the same matter in issue, these two fold objects first one is to avoid “Wasting Court Resources” and second one is to “Avoid Conflicting Decisions”. The main purpose behind this doctrine is to prevent the plaintiff from getting two separate decisions from different courts in his favour or two contradictory judgements.

Consider a situation in which X filed suit against S, following which S filed a subsequent suit against X on an issue similar to the one in the previous suit. X argued that since a similar suit is pending, the subsequent suit should not be allowed till the disposal. On the other hand, S filed an application arguing that both the suits should be tried together. X uses the doctrine stated under section 10 of the code and if all the conditions of the section are satisfied, then that subsequent suit has to be stopped. So, as per the illustration it can be argued that the said section is used to prevent Courts from simultaneously adjudicating upon two parallel litigations in respect of the same issues. So, this doctrine avoids the frivolous litigation and wastage of resources and unnecessary delay.

The object of Section 10 is stated in Pukhraj D. Jain v. G. Gopal Krishna[5] by the Supreme Court and it was observed that” The object of section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The section enacts merely a rule of procedure and decree passed in contravention thereof is not a nullity.”

Even in case of R. Srinivasan v. Southern Petrochemical[6] the court explained the object of Section 10 by stating” Under Section 10 of the Code of Civil Procedure, 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. This section does not contemplate an identity of issues between the two suits, nor does it require that the matter in issue in the two suits should be entirely the same or identical. What the section requires is that the matter in issue in the two suits should be directly and substantially the same, and proper effect must be given to the language used by the legislature in Section 10 that the identity required is a substantial identity. There must be an identity of the subject-matter, the field of controversy between the parties in the two suits must also be the same, but the identity contemplated and the field of controversy contemplated should not be identical and the same in every particular, but the identity and the field of controversy must be substantially the same. Where there are different and independent transactions between the parties, a suit qua one transaction cannot be stayed when a suit qua second transaction is filed.”

As Section 10 of Code of Civil Procedure is rule of procedure but it is mandatory[7].Thus, the provision of Section 10, Code of Civil Procedure is mandatory and trial of a subsequently instituted suit is bound to be stayed if any party starts the trial in any court with the same suit, in which a previously instituted suit is pending either in the Trial Court, or appeal. Many times a situation arises where the question arises that where the ingredients of section 10 are satisfied, does the court have no jurisdiction to direct consolidation of the two suits. In this situation the Orissa High Court in Manohar Lal Chopra v. Raj Bahadur Rao Raja Seth Hiralal [8]stated “There can be no doubt that the court has no power to direct the two suits between the same parties where the common question arises to be tried together”.

Where there is a case for the application of Section 10, recourse to the inherent power under Section 151 is not justified. However, where the provisions of Section 10 don’t strictly apply or the case is not covered by Section 10, a civil court has inherent power under Section 151 of the code to stay a suit if it is considered necessary to do so in interest of justice and in order to avoid unnecessary harassment to any of the parties. Similarly, a court has inherent power to consolidate different suits between same parties in which matter in issue is substantially the same to avoid two conflicting decisions.[9]

Conditions for the application of Res Sub Judice

For the application of this doctrine there are certain conditions which have been stated under the Section 10 of Code of Civil Procedure as follows:

  • 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.
  • Both the suits must be between the same parties or their representatives.
  • The previously instituted suit must be pending:
  • In the same court in which subsequent suit is brought, 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.
  • The court in which the previous suit is instituted must have jurisdiction to grant relief claimed in the subsequent suit.
  • The parties must be litigating under the same title in both the suits.

As soon as the above conditions are fulfilled, the court shall not proceed with the subsequently instituted suit. [10]

  1. Previously Instituted suit means suit instituted prior in time not the one decided earlier. In case Ranje Ram v. Nand Lal[11]It was held that where two suits were instituted by the petitioner and respondent and proceeded simultaneously, but the subsequently instituted suit was decided earlier and reached appellate stage, the respondent cannot take advantage of his quirk of fate and pray that the earlier instituted suit be stayed.
  2. “Matter in issue” means the earlier matter in controversy and not one of the several issues in the case. For application of Section 10 it is necessary that the matter in issue in the second suit must be directly and substantially in issue in the first suit. Therefore section 10 would apply only if there is identity of matter in issue in both the suit, meaning thereby, that the whole subject matter in both proceedings is identical.[12]
  3. The expression “same parties” means the parties between whom the matter substantially in issue has arisen and also has been decided. For application of Section 10 identification of parties is enough and parties in both the suits need not be the same. Fact that same parties are not parties in both suits, is not of much consequence for the applicability of the section. In case of Mahanju Prasad v. Prayag[13]it was held that “Section 10 does not become inapplicable by reason of addition of a party against whom no separate and substantial issue is raised”.
  4. Suit must be pending here means that whether the suit is pending must have jurisdiction to grant the same relief as claimed in subsequent suit. Even the title of the suit must be the same of both the parties which are litigating.

There are certain exceptions to this doctrine as “Suit Pending in a Foreign Court” As explanation 10 clearly provides that there is no bar on the power of the Indian Court to try a subsequently instituted suit if the previously instituted suit is pending in a foreign court. In Nath Bank v. A.M Tea Co [14]it was held that” the pendency of suit in a Foreign Court cannot be said to be previously instituted suit and the courts in India are not precluded from trying a suit based on the same cause of action. Interim orders and summary suits are also the exceptions to this doctrine. This doctrine rule does not affect the jurisdiction of the Court to pass interim orders such as stay, injunction, attached before judgement ‘appointed of receiver.’ In fact it would be in the aid of the judicial process to dispose of interlocutory matters in between.

Summary suits also constitute an exception to the provision of Section 10 as “in a summary suit the ’trial’ really begins after the court grant leave to the defendant to contest the suit, and thus, the world ‘trial’ in Section 10 in the context of a suit under Order XXXVII cannot be interpreted to be the entire proceedings starting with the institution of the suit.

Conclusion

It can be clearly concluded that the principle of Res Sub Judice is incorporated to meet the end of Justice. Section 10 of the code does not allow the court on two parallel litigation on the same cause of action. But because of this rule, the court can order the proceedings of subsequent suits in another court. Section 10 of Code lays down a procedure that does not vest any substantive right. The court has power to stay the trial of the subsequent suit. Although, if the trial is to stay under the rule of Res Sub Judice, it does not mean that it is disposed of completely. The court still has the power to adjudicate on interlocutory matters. Finally, it is clear that this provision works to avoid conflicting decisions between the court of law and wastage of resources also time.

Questions

Question 1: Is there any exception to this doctrine

Question 2: What are the conditions for the applicability of this doctrine?

Question 3: When it is applicable will the suit be disposed off by the court?

Question 4: Provision of Section 10, Code of Civil Procedure is mandatory or not?

Question 5: When this doctrine will not apply?

References

  1. C.K Takwani Civil Procedure Code
  2. http://thelawstudies.blogspot.com/2018/03/doctrine-of-res-subjudice.html
  3. https://legodesk.com/legopedia/res-sub-judice/
  4. https://www.legalbites.in/res-sub-judice-res-judicata/
  5. https://blog.ipleaders.in/res-judicata-res-sub-judice/

[1] Code of Civil Procedure, 1908

[2] The Oxford Dictionary

[3] Section 10 of Code of Civil Procedure, 1908

[4] Trikamda Jethabhai b. Jivraj Kalianji AIR 1942 Bombay, 314, 316

[5] AIR 2004 SC3504

[6] AIR 1992 Mad.363

[7] Manoharlal v. Heeralal, AIR 1962 SC527

[8] AIR 1962 Sc527

[9] Section 10 and Section 151 of Code of Civil Procedure, 1908

[10] C.K. Takwani Civil Procedure Code pg: 94

[11] Air 2011 HP 35

[12] National institute of M.H.& N.S. v. C. Parameshwara AIR 2005 SC 242(244)

[13] AIR 1975 Gau.40

[14] AIR 1960 Cal 779

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