DR.

RAM MANOHAR LOHIA NATIONAL LAW

UNIVERSITY, LUCKNOW.

Project on Code of Civil Procedure

‘ SECTION-10 RES SUB JUDICE’

Submitted by: Under the supervision of:

Swarnim Pandey Mr. Vipull Vinod

Section- B Assistant Professor
Enroll No.- 160101156 Faculty of Law
Sem- 3 RMLNLU.
 ACKNOWLEGEMENT

I have taken efforts in this project. However, it would not have been possible without the kind support and
help of many individuals. I would like to extend my sincere thanks to all of them.

I am highly indebted to Mr. Vipull Vinod for his guidance and constant supervision as well as for providing
necessary information regarding the project and also for his support in completing it.

I would like to express my gratitude towards my parents for their kind co-operation and encouragement
which helped me in completion of this project.

My thanks and appreciations also go to my colleagues in developing the project and people who have
willingly helped me out with their abilities.

-Swarnim Pandey.
 CONTENTS

Chapter one :- Introduction

 Meaning
 Evolution and background
 Scope

Chapter 2:- Legal Analysis

 Study of various provisions under the code

 Relevant legal/criminal bodies
 Present legal framework

Chapter 3:- Role of Judiciary

 Landmark cases
 Principle set out by judiciary

Chapter 4:- Comparative Study

 Res sub judice and res sub judicata

 Doctrine of res sub judice in other countries

Chapter 6:- Conclusion and Suggestions

 Findings
 Suggestions
 Drawbacks in legal framework

Bibliography and references

 Chapter 1: Introduction

The first provisions related to avoiding multiplicity of suits start with the provision of the concept of Res
Sub Judice as under:

Section 10 of the Civil Procedure Code, 1908 speaks about ‘Stay of Suit’

“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 jurisdiction, or before the Supreme Court.”

Explanation- 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 should proceed with the trial of any suit in
which the subject matter is directly and substantially in issue with the previously instituted suit between
same parties and the court before which the previously instituted suit is pending is competent to grant relief
sought.

MEANING
Res Sub Judice
Sub Judice in Latin means ‘Under Judgement’. It denotes that a matter or case is being considered by Court
or Judge. When two or more cases are filed between the same parties on the same subject matter, in two or
more different courts, the competent court has power to ‘Stay Proceedings of another court. In India, this
concept is encapsulated in S.10 of Civil Procedure Code.

Res Judicata
Res Judicata in Latin means ‘a matter (already) judged’. It is also called as Claim Preclusion. It is common
law practise meant to bar re-litigation of cases between the same parties in the Court. A case in which there
has been a final judgement and is no longer subject to appeal, the doctrine of Res Judicata bars continued
litigation of such matter between the same parties. Thus under this doctrine, the matter cannot be raised
again, either in the same or different Court of law.

EVOLUTION
The doctrine of res sub judice in its essence, has an ancient history, although it is difficult to say definitively
whether or not the doctrine as it stands now. Understood in the distant past by both Hindu lawyers and
Muslim jurists, it was known to Hindu law as ‘Purva Nyaya’ or ‘former judgement’. Under Roman Law, it
was recognised by the doctrine of exception rei judicatae which also meant ‘previous judgement.’

In order for the bar of res sub judice to be applicable, it must be shown that the cause of action in both the
suits is the same as well as that the plaintiff had an opportunity to get the relief that is now being clamed in
the subsequent suit, in the former proceeding itself.
 Chapter 2: Legal Analysis
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.

STUDY OF VARIOUS PROVISIONS UNDER THE CODE

The code provides rules for the civil court in respect of the doctrine of res sub judice. This rule applies to
trial of a suit not the institution thereof. No court shall proceed with the trail 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 relief claimed, or in any court
beyond the limits established or continued by the Code and having like jusrisdiction, or before the Supreme
Court.1

Therefore civil court should not proceed with the trial of any suit in which the matter in issue is directly and
substantially in issue in 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.2

This is to confine the plaintiff to one litigation thus obviating the possibility of two contradictory verdicts by
one and the same court in respect of the same relief.3 Avoids multiplicity of same proceedings.

CONDITIONS OF RES SUB-JUDICE

In order to attract the application of this sectary that the following conditions are fulfilled:

1. There must be two suits one previously instituted and the other subsequently instituted.
2. The matter in issue in the subsequent suit must be directly and substantially in issue in the previous
suit.
3. Both the suits must be between the same parties or their representatives.
4. The previously instituted suit must be pending in the same court in which the subsequent is brought
or in any other court in India or in any court beyond the limits of India established or continued by
the Govt. or before the Supreme Court.
5. The court in which the previous suit was instituted must have jurisdiction to grant relief claimed in
subsequent suit.
6. Such parties must be litigating under the same title in both the suits.4

If these essential conditions are fulfilled, the subsequent suit must be stayed by the court where it is
pending. It must be remembered that the institution of the subsequent suit is not barred but its trial
only. The final decision of the former suit shall operate as res judicata in the previous suit. But the
problem arises when part of the subject matter is common to previously instituted suit and
subsequently instituted one.
The word ‘shall’ in the section makes it mandatory and the moment court finds out that above
conditions are met, it will not proceed with the subsequent suit. It is mandatory.5

1
S.10 of CPC,1908
2
Indian Bank vs. Maharashtra State Cop. Marketing Federation Ltd, AIR 1998 (SC) 1952
3
Guru Prasad vs. Bijoy Kumar, AIR 1984 Ori 209 (212)
4
C.K. Takwani, Civil Procedure, Fifth Edition, pg 52
PURPOSES OF RES SUB JUDICE
The Sec. 10 intends to protect a person from multiplicity of proceedings and to avoid a conflict of decisions.
It also protects the litigant people from unnecessary harassment. It also aims to avoid inconvenience to the
parties and gives effect to the rule of res judicata.6

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.7 Similarly a court has inherent power to
consolidate different suits between the same parties in which the matter in issue is substantially the same.8

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. It only lays down a procedure, simple which can
be waived by a party. Thus if after waiving subsequent suit is proceeded with, they cannot later challenge
the validity of it.9

SUIT PENDING IN FOREIGN COURT

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.10

RELEVANT LEGAL/CRIMINAL BODIES

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.

PRESENT LEGAL FRAMEWORK

Constructive Res Judicata

5
Manohar Lal v Seth Hiralal, AIR 1962 SC 527(536)
6
S.P.A-Annamalay Chetty v B.A Thornhill AIR 1931 PC 263
7
Jado Rai v Onkar Prasad, AIR 1975 All 413
8
Gupta v East Arctic cO. AIR 1960 All 184
9
Gangaprasadv Mt. Banaspati AIR 1937 Nag 132
10
Explanation of S.10 CPC, 1908
Rule of constructive res judicata is engrafted under Explanation IV of Section 11 of the Code. It is artificial
form of res judicata and provides that if a plea could have been taken by a party in a proceeding between
him and his opponent, he should not be permitted to take that plea against the same party in a subsequent
proceeding with reference to the same subject-matter. That clearly is opposed to considerations of public
policy on which the doctrine of res judicata is based and would mean harassment and hardship to the
opponent. Besides, if such a course is allowed to be adopted, the doctrine of finality of judgments
pronounced by the courts would also be materially affected.

Thus, it helps in raising the bar of res judicata by suitably construing the general principle of subduing a
cantankerous litigant. That is why this rule is called constructive res judicata, which, in reality, is an aspect
or amplification of the general principle of res judicata.

Res Judicata and Public Interest Litigation

Even in a public interest litigation procedural law is applicable though not strictly. Hence, the principle of
res judicata is also applicable. Where the prior public interest litigation relates tom illegal mining,
subsequent public interest litigation to protect environment is not barred.

Writ Petitions and Res Judicata In M.S.M Sharma V. Dr. Shree Krishna11, for the first time Supreme Court
held that the general principle of res judicata applies even to writ petition filed under Article 32 of the
Constitution of India. Thus, once the petition filed under Article 32 is dismissed by the court, subsequent
petition is barred.

Similarly, a writ petition filed by a party under Article 226 is considered on merit as a contested matter and
is dismissed, the decision thus pronounced would continue to bind unless it is otherwise modified or
reversed in appeal or in other appropriate proceedings under the Constitution.

In the leading case of Daryao v State of U.P12, the SC has placed the doctrine of res judicata on a higher
footing, considering treating the binding character of the judgements pronounced by competent courts as an
essential rule of law.

11
AIR 1960 SC 1186
12
AIR 1961 SC 1457
 Chapter 3: Role of Judiciary

The judiciary plays a very important role in setting the principles of a concept in law. Over the years the
judiciary around the world has pronounced many decisions in cases relating to Civil law. The framers had
made the law, but certain aspects are subject to judicial interpretation. Some landmark cases and the ratio
decidendi adopted thereof have helped to develop and update the laws concerning Civil and Criminal
Proceedings. A few important case studies are discussed in detail below.

LANDMARK CASES
Escorts Const Equipments Ltd. v. Action Const Equipments Ltd. 1999 PTC 36 (Del)
Facts: The defendant had filed for stay of present suit, an application u/s 10 CPC, on ground that the matter
in controversy is pending in Jamshedpur Court also. This was opposed by plaintiff on ground that, the
defendants had raised issue of jurisdiction of Jamshedpur Court to entertain same suit; and that application
u/s 10 CPC can be filed in the present suit, only if objection with respect to lack of jurisdiction was
withdrawn in Jamshedpur Court.

Judgment. Court held that the conditions requisite to invoke S.10 CPC are:
• Matter in issue in both the suits to be substantially the same.
• Suit to be between the same parties or parties litigating under them.
• Previously instituted suit to be in the same Court or a different Court, which has jurisdiction to grant the
relief asked.
There is nothing to the effect that defendant should not question the competency of previously Court in the
previously instituted suit, and there remains the fact that the plaintiff in their defense against S.10 CPC, had
not stated the Jamshedpur Court is competent. Thus relief was granted to the defendant.

National Institute of Medical Health and Neuro Sciences v. C Parameshwara AIR 2005
SC 242
Facts: The respondent was a Senior Pharmacist at the institute, in this case being the appellant. The
appellant sued the respondent for misappropriation of Mugs to the tune of almost Rupees one lakh eighty
thousand. For the same, an enquiry officer was appointed, who submitted a detailed report. After going
through the report, the director of the institute removed the respondent from service. Being aggrieved, the
respondent moved the Labor Court, which set aside the removal. The appellant being aggrieved by the Labor
Court's decision filed a writ regarding the same. On the other hand, the appellant also sued the respondent in
the Civil Court to recover the damages.

Judgement: The HC observed that since the writ petition filed by the appellant against the award of the
Labor Court was pending in the HC, and since the HC was superior to the Civil Court, it was desirable that
the decree of the Civil Court stay. The SC overruled this judgment, since the scope of both the cases in the
Labor Court as well as Civil Court were different, and allowed the appeal.

Indian Bank v. Maharashtra State Cooperative Marketing Federation Ltd. AIR 1998
SC 1952
In this case, the SC discussed at length whether the bar contained in section 10 applies to a summary suit
filed under Order 37 of the CPC—The word 'trial' in Section 10 in the context of summary suit cannot be
interpreted to mean the entire proceedings starting with institution of the suit by lodging a plaint. In a
summary suit the 'trial' really begins after the Court or the judge grants leave to the defendant to contest the
suit. Therefore, the Court or the judge dealing with the summary suit can proceed up to the stage of hearing
the summons for judgment and passing the judgment in favour of the plaintiff if,

(a) The defendant has not applied for leave to defend or if such application has been made and refused or if,
(b) The defendant who is permitted to defend fails to comply with the conditions on which leave to defend is
granted

Judgement: Held that the object of prohibition in S.10 CPC, is to:

• Prevent Courts of concurrent Jurisdiction from simultaneously trying two parallel cases.
• Avoid inconsistent findings on the matter in issue.

PRINCIPLES SET OUT BY THE JUDICIARY

Harish Chandra v. Triloki Singh AIR 1957 SC 444
The apex court held that the word trial has not been used in its widest sense in this section. However, the
nature and scope of the provision, as well as the context in which it is used decide whether the section shall
be construed in a narrow sense or its widest sense.

Arun General Industries v. Rishabh Manufacturers Pvt. Ltd. AIR 1972 Cal. 128
The Calcutta High Court held herein that section 10 not only applies to the trial of the suit but also to all
proceedings therein.

Indian Bank v. Maharashtra State Cooperative Marketing Federation Ltd. AIR 1998
SC 1952
The Apex Court observed in this case that the course of action that the Court has to follow is not to proceed
with the 'trial' of the suit But, that does not mean that it cannot deal with the subsequent suit anymore or for
any other purpose. It also stated that the word 'trial' in this section has not been used in its widest sense.

Pukhraj D. Jain v. G. Gopalakrishna MR 2004 SC 3504

The Apex Court held in this case that the object of the section is to prevent courts having concurrent
jurisdiction from trying two parallel suits, at the same tint, with respect to the same matter This section acts
as a mere rule of procedure, and a decree passed in its contravention, is therefore not a nullity.

Manohar Lal v. Seth Hiralal AIR 1962 SC 527

 In this case, the Apex Court observed that the provisions of this section are clear, definite and mandatory.
The court, in which a subsequent suit has been filed, is prohibited from proceeding with that suit in certain
circumstances. The provisions of section 10 do not become inapplicable to the court, even if the previously
instituted suit was vexatious or is in violation of the terms of a contract.
 Chapter 4: Comparative Study
DIFFERENCE BETWEEN RES SUB JUDICE AND RES JUDICATA
Often people confuse the concepts of res sub judice and res judicata. Res sub judice is discussed in S. 10 and
applies to a date of institution of suit S.11 of the CPC and is a matter adjudicated upon and applies to the
date of adjudication.

The difference between Res-Sub judice and Res- Judicata are as Follows:

1. In case of Res Sub Judice, there must be two suits, one previously instituted whereas in case of Res-
Judicata there must be an end to litigation.

2. In case of Res Sub Judice, the matter in issue in both the suits must be substantially the same. On the
other hand, the matter directly and substantially in issue in the subsequent suit must have been directly and
substantially in issue in the former suit either actually or constructively.

3. In case of Res Sub Judice, the previously instituted suit must be pending in the same court in which the
subsequent suit was brought or in a different court having jurisdiction to grant the relief claimed. On the
contrary, the former suit must have been a suit between the same parties or between parties under whom
they or any of them claim.

4. In case, of Res Sub Judice, such parties must be litigating in both the suits under the same title. In case of
Res Judicata, such parties must have been under the same title in the former suit.

5. In case of Res Sub Judice, both the suits must be between the same parties or their representatives. On the
other hand, a final decision of a concrete issue between parties.

THE DOCTRINE OF RES SUB JUDICE IN OTHER COUNTRIES

In England and Wales, Ireland, New Zealand, Australia, South Africa, Bangladesh, India, Pakistan, Canada,
Sri Lanka and Israel it is generally considered inappropriate to comment publicly on cases sub judice, which
can be an offence in itself, leading to contempt proceedings. This is particularly true in criminal cases, where
publicly discussing cases sub judice may constitute interference with due process.

In English law, the term was correctly used to describe material which would prejudice court proceedings by
publication before 1981. Sub judice is now irrelevant to journalists because of the introduction of the
Contempt of Court Act 1981. Under Section 2 of the Act, a substantial risk of serious prejudice can only be
created by a media report when proceedings are active. Proceedings become active when there is an arrest,
oral charge, issue of a warrant, or a summons.

In the United States, there are First Amendment concerns about stifling the right of free speech which
prevent such tight restrictions on comments sub judice. However, State Rules of Professional Conduct
governing attorneys often place restrictions on the out-of-court statements an attorney may make regarding
an on going case. Furthermore, there are still protections for criminal defendants, and those convicted in an
atmosphere of a media circus have had their convictions overturned for a fairer trial.
 Chapter 5: Conclusion And Suggestion
STUDENT'S FINDINGS
• The researchers found out that there are some basic conditions which have to fulfill anyway:

1. Two suits — Previously Instituted and Subsequently Instituted

2. Matter in issue in subsequent suit —directly and substantially in issue in previous suit
3. Both suits between same parties or their representatives
4. Previous suit must be pending in same or in any other court in India
5. The court dealing with previously instituted suit competent to grant relief claimed in subsequent suit
6. Parties litigating under the same titles in both the suit.
• 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 with
the proceeding of 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.

SUGGESTIONS
• 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.

• 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 which is a aspect which should be modified.

• 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. This still makes the
court too lengthy and takes a long duration.

• The amount of clarity given to distribution of powers between Central and State governments made under
the constitution is commendable of a 'suggestion' for the researchers to give. The fact that the project merely
states the provision and does not go into in depth analysis of appropriateness of the provisions

DRAWBACKS IN THE LEGAL FRAMEWORK

• Globalization and inter-connectivity in the world has brought with itself an increase in trans-national
transactions between individuals and corporations. Often, it so happens that the court exercising jurisdiction
over the case is different from the one where the relief granted is to be executed. Therefore, an increase in
the number has led to a formidable question on the enforcement and execution of a judgment passed by a
foreign court within the territory of India.

• The Indian Civil Procedure Code provides for the execution of decrees and judgments passed by foreign
courts. Although, at the time of adoption of the code no such need to execute foreign decrees was felt as
India was under the dominion of the imperialistic state of Britain.

• In this modem and globalized world, the concept of reciprocity has hindered the execution and
enforcement of decrees passed by the foreign courts in India.

• Diplomatic objectives of the Indian Government has choked the Code of Civil Procedure with unnecessary
provision and requirements. Non-recognition of foreign territory as a reciprocating country has led to failure
of appreciating the orders and judgments passed by its courts even if it meets the parameters of defined
under Section 13.

• The Indian Government must ensure that certain amendments are made on these fronts such that execution
and service of foreign decrees and documents can be smoother, more cost effective and less time consuming.
 References and Bibliography
BOOKS:
1. Black's Law Dictionary (9th Standard edition).

2. All India Reporter (AIR).

3. Bluebook (19th) Citation method.

4. Civil Procedure code with Limitation Act, 1963 by C.K. Takwani, Eastern Book Company, 5th Edition

5. Civil Procedure Code Bare Act, Universal Publication.

ONLINE ARTICLES AND JOURNALS:

1. https://indiankanoon.org/search/?formInput=res%20sub%20judice

2. https://www.caclubindia.com/experts/res-judicata-vs-res-sub-judice-839725.asp

3. https://www.assignmentpoint.com/arts/law/the-code-of-civil-procedure-1908-lecture-03.html

4. https://www.legalserviceindia.com/article/1454-Res-Judicata.html

5. https://www.legalserviceindia.com/article/article/res-sub-judice-res-judicata-and-constructive-res-
judicata-1782-1.html

6 https://indiankanoon.org/search/?formInput=section%2010%20cpc+doctypes:supremecourt

7.http://lawteacher.net/free-law-essays/constitutional-law/res-judicata-and-code-of-civil-procedure-
constitutional-law-essay.php