S 10 Res Sub Judice Stay of Suit

In essence, S 10 states
No court shall proceed with trial of any suit in which the matter in issue is directly
and substantially the same as in a previously instituted suit between the same parties
in same / other competent court and the previous suit is still pending.
- parties same or between any claiming under same title
- court should have jurisdiction to grant relief can even be beyond India as long as
that Court has jurisdiction before SC.
Expl : The pendency of a Suit in a foreign court does NOT preclude the Courts in
India from trying a suit on same COA.
Objective : Avoid Multiplicity. Confusion, Disputes, Wasted Efforts
Conditions : 1) 2 suits 2) D&S same matter 3)Same parties/reps 4) parties litigating
under same title 5) previous case in same or any competent court in India or beyond
6) Previous Court must have jurisdiction to grant relief.
Note that once the suit is decided in the previous court, then also a subsequent suit
under same D&S matter in same/other competent court is barred under S 11-Res
Subjudicata
So the only option is appeal to a higher court.
Matter in issue : must be entire matter , not some slight overlapping issues. Decision
in one suit must non-suit the other suit .Test is whether decision in previous suit
will act as Res Judicata. Basis of claim ( Cause of Action COA ) not material the
matter in issue should be same. It is NOT necessary that BOTH Subject Matter and
COA should be the identical in both the suits.
ONLY Trial is barred , not the institution of Suit. So suit cant be dismissed,
required to be stayed. For eg. if limitation period is expiring, Pt should file the
second suit if rqrd even if the first is pending for adjudication.
Mandatory : Court has no discretion in this matter. Order staying the latter suit can
be made at any stage. Even if S 10 does not strictly apply, Court has inherent power
to stay the latter. Inherent power also to consolidate suits when issue substantially
same.
Contravention of S. 10 : Then Decree of the latter suit is NOT a nullity. S 10 is a rule
of procedure not law. Can be waived by a party. If so done, subsequent suit
proceedings cant be challenged. Also, interim orders, injunctions, stay , appointment
of receiver etc can be passed via the latter suit as well.
Case #2 : Indian Bank v. Maharashtra State Cooperative Banking
Here one suit is pending, another is file for Summary Relief under Order 37. HC held
that trial as used in S 10 applies only to a regular suit. Since the latter suit is under
O 37, Summary Suit , trial in that can proceed. Division bench disagreed, saying Trial
has to be used in widest sense and so, S 10 applies to Summary Suit also. Ap went to
SC saying that if so, the very object of making separate provisions for summary suits
will be frustrated.
SC agreed and said :
a) Indeed in widest sense trial means all proceedings right from plaint to judgment
and decree.
b) But Trial in S 10 has to be understood keeping in mind the nature and object of
provision. Which is essentially avoidance of duplicate efforts by courts of concurrent
jurisdiction on same subject matter leading to confusion and disputes. S 10 is a rule
of procedure, doesnt not create substantive rights, not a bar to the institution of the
latter suit. It allows interlocutory Orders, Consolidations, Injunctions, Receiver ,
attachment etc. Subsequent suit, if for any other purpose can proceed to trial. All this
shows in S.10 trial is not used in widest sense.
c) S 10 is a general provision. O 37 is specific to certain classes of suits, providing for
quick relief. Both have to seen harmoniously. In Summary Suit it is not the entire
trial starting from plaint to decree. Here trial begins only after Court grants leave to
Df to contest and Judgment passed only if Df does not apply to Defend or his
application refused or he doesnt comply with the conditions under which leave to
Defend was granted to him.
So under O 37, trial is a limited one and can proceed even if an earlier suit pending.
No violation of S 10.
Res Judicata
Means thing already decided . A subsequent suit, on same COA and between same
parties, is barred by Res Judicata. Basis is :
1) Finality of judicial decisions : In general public interest and the state.interest
reipublicae ut sit finis litium
2) Interest of individual : No one to be vexed twice over same COA. based on
Justice, Equity and Good Conscience. Nemo debit bis vexari pro uno et eadern
causa
3) Judicial Decision must be accepted as Correct : res judicata pro veritate occipitar

Brihaspati Samriti : If a person who has been defeated in a suit according to law files
the plait once again he must be told that he as been defeated already; this is called
the plea of prang-nyaya

Sec. 11
Essentially it says that if a Suit comes before a Court in which :
a) The matter in issue is Directly and Substantially (D&S) the same as in a former
suit which
b) Was between the same parties or parties under whom they/any one of them claim
and
c) The parties are litigating under the same title as in the former suit and
c) the former suit was in Court competent to try that suit as well as the one now being
raised ( subject to Expl. VIII, added by 1976 Amendment ) and
d) the question D& S in issue being raised now ( subsequent suit ) was already heard
and finally decided in the earlier suit .
Then the Court is barred from trying this subsequent suit.
( Explanations hereunder are paraphrased for clarity )
Expl I : Former suit refers to the suit which was decided prior to the suit in question,
irrespective of whether it was instituted prior to the subsequent one or not.
Expl II : For this Section, Right to appeal from the decision of a Court is irrelevant
towards its competence..
Expl III : Matter in the former suit must have been alleged by one party and either
directly or impliedly denied/admitted by the other
Expl IV : Any matter which might or ought to have been made a ground for attack or
defense in the former suit, shall be deemed to have been a matter D&S in the former
suit.
Expl V : Any relief claimed in the former but not expressly granted by the Decree,
shall be deemed to have been refused.
Expl VI : If some persons litigate bonafide wt a public right, or a private right
common to them and others, all persons interested in such right shall be deemed to
be claiming under the persons so litigating, for the purpose of this Section.
Expl VII : This section applies to a proceeding for a decree execution and the
references herein to any suit, issue or former suit shall be construed as references
respectively to a proceeding(suit), questions (issue) arising in such proceeding and a
former proceeding(suit) for the execution of that decree.
Expl VIII : The decision of a Court of Limited Jurisdiction, competent to decide an
issue shall operate as Res Judicata on a subsequent suit where the issue is D&S the
same, even if the Subsequent Suit is such that the Court is not competent to try that
subsequent suit.
* Res Judicata is a mixed question of law and fact. The bar applies not only to the
decision but also to all facts and circumstances used to arrive at it. Matter in issue
means the facts on which a right is claimed/denied and the law applicable to that
issue
1) D&S in Issue
* Matter In issue is distinct from the subject Matter, Object of the Suit
as well as the relief. All these may be different but if the MII is D&S same as in an
earlier suit decided, RJ will hold.
* MII can not be said to be the D&S in issue unless it was clearly alleged by one party
and expressly / impliedly denied by the other. So, a matter wrt which no relief is
claimed is not a MII. For it to be DS in issue it should have been decided and the
judgment based on that decision. Collateral/ incidental matters may not be MII and
so not hit by RJ.If decision rests on many points, all count towards RJ. Any finding
recorded on a matter NOT in issue will not operate as RJ between the parties.
2) Between Same Parties
* Also includes persons claiming under them.
* Also applies to people not expressly named ( Expl VI ).. an aspect of Constructive
res Judicata. The son, for eg. is bound by the decision against his father in a joint
family suit where the Father was the Karta.
3) Litigating under the same title
i.e., in same capacity.
identity of property not the issue, that of litigants is the test.
RJ doesnt hold if second suit is by same person but different capacity ( earlier
Heir, later as manager of a Math , earlier alleged B is a tenant, later that B is a
trespasser .. )
or 4) Former Court competent to consider the subsequent suit as well
Relates to pecuniary and subject matter, NOT to territorial jurisdiction.
- Expl. VIII significant. Objective is again to avoid unnecessary litigation even in
higher courts if the matter in issue is the same, although pecuniary limits, for eg.,
may have changed.
5) Heard and Finally Decided by Court in First Suit
Should be on merits, where Court has applied its mind, even if Ex Parte.
So if suit dismissed for default of Jurisdiction, or plaintiffs non-appearance or
non-joinder/mis-joinder , limitation etc will not make a bar of RJ.
Even if earlier decision was incorrect, bad in law it still holds. But if it was on
incorrect jurisdiction itself, the decision is a nullity to begin with and so no bar of RJ.
A matter of fact cannot be reopened. A mix of fact and law is on same footing. But
if it is purely of law and relates to jurisdiction of court or sanctioning an illegality,
bar of RJ is not there.
Scope
1) Constructive RJ can be invoked by the Court at any time, if substance of the
matter so allows.
2) If an appeal ( in an appellate Court ) is filed, the Judgment against which it is ,
is not to count as RJ.
3) RJ also holds between different stages of litigation in same suit and court.
Matter already decided can not be reagitated in same suit as well at a later stage.
4) Exparte is RJ only if Court has applied its mind.
5) In a Compromise Decree RJ doesnt hold since not on merit. But holds wrt
the conclusion arrived at, if court concludes parties intended that Consent Decree
should decide the question finally.
6) Opinion of the Court on a matter NOT in issue and not necessary for decision is
obiter dictum and not RJ. It is the decision not the reasons there of which count as
RJ.
7) RJ also applies to Execution Decrees and Orders. BUT does NOT apply to
Summary Proceedings.
8) Since S 11 relates to suits and former suits, no direct application to a petition for
issue of a Writ. But if a renewed application for Writ made, may apply. For eg. first
WP u/article S. 226 in HC. Second filed u/A 32 in SC. Former decision applies as RJ,
except if former given in limine, not on merits, laches etc.
9) Change of Law : Then ,former decision NOT holds towards RJ.
10) Erroneous Decision : If earlier decision opposed to Statute, RJ doesnt hold. But
if a superior court takes a contrary view of same matter in ANOTHER Case, this case
can not be opened again, even if decided wrongly.
11) Conflicting Decisions : Both courts competent, same subject matter. Latter
decision will be hit by RJ.
12) Waiver of RJ Plea : Either express or implied.
13) Avoidance of RJ : S.11 is mandatory and can be avoided only if earlier decision
due fraud, collusion or incompetent court with no jurisdiction. Void decree is not RJ.
14) Adverse Finding : If plaintiff suit WHOLLY dismissed, no finding there on
applies as RJ against the Df in a subsequent suit since Df could not have anyway
appealed against such a finding, the Decree being wholly in his favor. Similarly for
plaintiff, if issue is wholly decreed in his favor. It is the right of appeal which
determines if findings were necessary or merely incidental.
15) If a Def is proforma added just to complete suit but no relief sought against
him, a finding does not operate as RJ against him. Except when other conditions of S
11 apply, when it may operate as RJ
Res Judicata ( S. 11 ) and Res Sub-judice (S. 10 )
Former relates to a matter in which decision is alraedy there, latter when decision
is pending.
S. 10 stays the trial of the next suit. S. 11 does not allow the next trial to even begin.
Res Judicata v Estoppel
1) RJ is estoppel by record. Based upon public policy that litigation should end.
Estoppel is part of law of evidence where a man cant change his stance once taken.
2) RJ prevents someone from saying SAME thing in different litigations, estoppel
stops him from saying DIFFERENT things at different times, either in the same suit
or different suits. RJ bars the trial itself, while estoppel only stops a certain piece of
evidence from being taken on record, while the trial continues.
3) RJ ousts the Jurisdiction of the Court, estoppel stops the mouth of a party.
4) RJ derives from a Court Decision, estoppel from facts asserted by parties.
5) RHJ presumes conclusively the truth of the former decision, estoppel prevents
someone from asserting a new truth