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Res Subjudice Under CPC

The preliminary source for legal provisions in relevance with restriction of multiplicity of suits or never ending process of litigation is dealt under the provisions of Sec 10 and Sec 11 of Code of Civil Procedure, 1908 influenced by the concepts of Res Subjudice and Res Judicata.

This paper contains the definitions, meanings, procedures, essential conditions to invoke the concepts of Res Subjudice provided under Sec 10 of CPC. It also addresses the differences between the concepts of Res Subjudice and Res Judicata with regards to its procedural aspect and conditions to comply with.

It also gives a detailed study about the legal provisions regarding the concept of Res Subjudice in the other countries of the world. It also gives various cases of the Indian Courts that have helped in substantiating this concept to be a legal right in every civilized nation. It concludes by highlighting the importance of these two provisions in every civilized society.

Section 10 of the Code of Civil Procedure, 1908 in particular lays out the structure of the Doctrine of Res Subjudice. Similarly, Section 11 of the Code of Civil Procedure, 1908 deals with the Doctrine of Res Judicata. Sec 10 of CPC supplies the rules and essential conditions with regard to the Stay of Suits when the same matter under the same title is under consultation or pending for adjudication in a Court.

On the other side, Sec 11 of CPC provides the rulings and essential conditions pertaining to the Bar on Suits when the same matter under the same title has already been adjudicated by a competent Court. It bars the trail of suit or any matter which is directly and substantially in compliance with the former suit which has already been adjudicated.

These two provisions are to be mandatorily implied by every Court and not to entertain suits of the same matter being filed endlessly. The purpose of the strict implementation of Stay of Suits is to restrict or avoid multiplicity of proceedings, end with a conclusive adjudication and to avoid two different orders by two courts or the same court for one issue.

Res Subjudice

The term Subjudice in Latin means under judgment. This implies that this maxim deals with the stay of suits with same matter and cause of action which are pending in the same court or in two separate courts. It denotes that any matter or suit, being filed with the same issue and cause of action, of same parties litigating under the same title as in the previously instituted one is under the consideration of the Court or another Court, then the secondly instituted suit shall be deemed to have been stayed. This stay of suits can only be done by the Courts with competent jurisdiction and inherent powers.

Section 10 Of CPC Stay Of Suits

The Sec 10 of Code of Civil Procedure, 1908 reads as follows: 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, where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed.[ Code of Civil Procedure, 1908, (Act No. 5 of 1908), Sec 10 ]

With clear explanation the Code of Civil Procedure, 1908 prohibits or puts a duty on the Court not to proceed with the trail of any suit that it is being instituted in the same Court or another Court in which the matter is in issue with the previously instituted suit between the same parties and the court in which the previous suit is filed must be competent enough with its pecuniary jurisdiction to grant the relief prayed for in the subsequent suit.

The main purpose or the nexus behind this Section is that to bring an end to the litigation, to avoid harassment over the defendant, to avoid wasting the resources of the court and to delay the Court procedures. In the case of Guru Prasad v. Bijay Kumar, it was held that the main aim of this Section is to eliminate the outcome of two contradictory verdicts for the same issue. But if the two suits are dealt conjointly by a particular Court to deliver justice, then it would not be against this Doctrine.[ AIR 1984 Orissa 2029 ]

This Section 10 further has an explanation that states:
The pendency of a suit in a foreign Court does not preclude the Courts in India from trying the suit founded on the same cause of action.[ Code of Civil Procedure, 1908, (Act No. 5 of 1908), Sec 10]

This clearly explains to us that, any suit that is instituted in any foreign court, which is not under the control or supervision of the central Government of India or the Supreme Court of India, does not attract this Section or this doctrine of Res Subjudice.

Any suit can be instituted in the foreign courts in compliance with the Jurisdiction limits and the same can also be instituted in the Indian Courts if the matter needs judgment in accordance to the Indian Law and this should also be in accordance to the Jurisdictional limits. The main objective of this Section is to prevent a person from taking multiple proceedings against another person in a same matter, thereby avoiding difference of decisions in each suit. It also protects the defendant from frivolous harassment. This was observed in the matter of SPA Annamalay Chetty v. B A Thornlill.[ AIR 1931 PC 263 ]

Conditions To Invoke Section 10 Of CPC

The essential elements to attract this Sec 10 of CPC are as follows:
  • There must be two suits instituted. The former is known as Previously Instituted and the latter is known as Subsequently Instituted suit.
  • The matter in issue must be directly and substantially in issue in both the suits.
  • Both the suits must be between the same parties or any person acting under the parties
  • Previously Instituted suit must be pending in the same or any other Court in India having its competent jurisdiction.
  • The Court dealing with the previously instituted suit must be competent in its pecuniary and territorial jurisdiction to grant the relief asked for in the subsequently instituted suit.
  • The parties litigating in the suits must do so under the same title in both the suits

Directly And Substantially In Issue

This statement of the essentials simply means that the subject matter in both the suits must be one and the same. For instance: A files a suit against B for misrepresentation while entering a contract. He also files a suit against B for Breach of Contract. The matter in issue is not one and the same; hence this Sec10 of the Code of Civil Procedure, 1908 will not be attracted. In the case of M.H & N.S v. C. Parameshwara, the Court held that if the essential of having issues that are directly and substantially related is not fulfilled, this Doctrine cannot be applied.[ AIR 2005 SC 242 (244) ]

In the case of Mathew & Anr v. Sony Cyriac, the same was stated in regards with suits filed for criminal prosecution and redemption of money for a bounced cheque.[ 1995 2 KLJ 158] In the case of Monohar Lal Chopra v. Sait Hiralal, the court held unanimously that this Sec of the Code has to apply mandatorily leaving no exceptions until and unless the Court does not hold the Jurisdictional powers or the power to grant the relief in the subsequent suit.[ AIR 1962 SC 527 ]

The above mentioned requisites for invoking this Section 10 were reiterated in the case of Escorts Const. Equipments Ltd. v. Action Const Equipments Ltd., 1998. The Provisions of this section are exhaustive. They have specific and expressed interpretations along with explanations. These provisions are not optional but mandatory for the Courts to observe when they proceed with the trail of a suit.

These provisions are very clear and explicit with an open forum for interpretation because it should reduce the multiplicity of the suits having the same matter and issues.

Exceptions To Section 10 Of CPC

This Section shall only be used to stay or restrict the Trail of a suit as it is very explicit in its content and starts with the words, No Court shall proceed with the trail of any suit. Thus it is conclusively determined that it shall only apply to the trail and not its other relevant proceedings. This Section 10 of the Code of Civil Procedure, 1908 cannot be invoked if the matters of the issues are distinct and not directly same but different.

This was once again reiterated in the case of Alimallah v. Sheikh.[ 43 DL RLL 3] This argument further extends and in the case of Abdur v. Asrafun, it was held that even if there are few common or similar issues but there other issues which are totally different to the previous suit then this Section 10 cannot be attracted.[ 37 DLR 271 ] It was further explained in the matter of Manzar v. Rema, that this Section is not available for suits where the parties are the same in both suits but the matter in issue isnít one and the same in both suits.[ 33 DRL 49]

There is no bar of suits or stay of suits when the subsequent suit or the former suit is filed in a foreign Court which is not established or under the control of the Central Government of India or Supreme Court of India. Furthermore, Interlocutory or any Interim Orders are well established exceptions to this Doctrine of Res Subjudice.

Some orders are passed without any proceedings of a trail, thus such orders cannot be taken up for stay based on this Doctrine. This shows that the section 10 and the Doctrine of Res Subjudice can be invoked only for bar of trails and cannot be invoked in the other interim orders passed by the Court of Law. This was well established in the case of Sennaji Kapuechand v. Pannaji Devachand.[ AIR 1922 Bom. 276] These are the exceptions to this Section 10 of the Code of Civil Procedure, 1908.

Inherent Power Of Court To Stay Suits

According to this Section, the Courts may pass any order to stay the subsequent suit when it fulfills the requirements of this Section. But this Section does not stop the inherent powers of Court that is guaranteed under the Section 151 of the Code of Civil Procedure.

According to the Section 151 of the Code of Civil Procedure, the Courts have power to stay the suits or its proceedings based on the various elucidated facts to make the ends of justice meet. Thus, the Courts can exercise its Inherent powers to stay a suit to serve justice better, even when it does not attract Section 10 of the Code.

According to the Section 151 of the Code, the Courts may even pass an order to stay the former suit also, which is not available in the Section 10 of the Code. This was well explained in the case of Ram v. Devidayal.[ AIR 1954 Bom. 176] This Inherent Power of the Court can also be termed as an exception to this Section 10 of the Code as well as an individual right of the Courts.

Stay Can Be Of Subsequent Suit Trail Only

The other notable factor in Res Subjudice is only the Subsequently Instituted Suit can be stayed and the Previously Instituted suit cannot be stayed. This was held in the case of GC Care Centre & Hospital v. OP Care Pvt. Ltd.[ AIR 2004 SC 2339] Further the institution of the subsequent suit through a petition/ plaint is not restricted but the trial proceedings of that suit or plaint is only barred under Sec 10 of CPC based on the Doctrine of Res Subjudice. This was held in the case of Indian Bank v. M.S. Co-op Marketing Fedn. Ltd.[ AIR 1998 SC 1952 (1954) ]

Res Subjudice And Its Other Relevant Aspects

This Doctrine of Res Subjudice can be associated to the basic principles of natural justice. Any action or procedures that are against such principles of natural justice will in turn become violation of legal rights of a person thereby affecting the Human Rights of the person. Just like how Res Judicata has its own importance and the same being incorporated in the Indian Constitution under the concept of Double Jeopardy, Res Subjudice must also be included into the Constitution as the basic legal right as well as Fundamental Right.

This Section 10 of the Code and the Doctrine of Res Subjudice shall be related to the Right of Life enshrined to the Indian citizens by the Indian Constitution under Article 21, as it protects and prevents the harassment of the defendant party or parties, which reflects the ideas of the Article 21 in relation to Right against harassment inclusive of Mental harassment. It also prevents the misuse of Legal Rights and the misuse of powers of the Courts.

Thus it shall also attract the provisions of the Contempt of Courts Act, 1971. The disrespect of the resources of the Court and wasting the valuable time of the Courts by instituting multiple suits for the same matter will and must attract the concepts of Contempt of Court. Thus this Section 10 of the Code can be considered as one of the principles of Contempt of Court, which is dealt separately in the Code of Civil Procedure.

Thus this doctrine of Res Subjudice can be correlated with the other aspects of the law proving the stance that this doctrine is a multi facted concept deriving its roots from a single source but shares its branches in various aspects of law, right from human rights to Contempt of Court and Indian Constitution.

Difference Between Res Subjudice And Res Judicata

Res Judicata was derived from the Latin term and it means Ďthe thing has been judgedí. This clearly explains to us, the suit must not be entertained if the matter and issue raised in the subsequent suit is directly same with that of the former suit having the same parties litigating under the same title. This concept can also be related to the provisions of Double Jeopardy under Article 22 (2) of the Indian Constitution. This being the primary explanation, the difference between Res Subjudice and Res Judicata are as follows:
  • There must be two suits, one previously instituted and one subsequently instituted to attract Res Subjudice.
    Whereas, there should be an already litigated and decided suit known as the former suit to attract Res judicata.
  • The previously instituted suit must be pending in a court for adjudication when the subsequent suit is filed to invoke Res Subjudice.
    While, the former suit between the same parties must have been already adjudicated and disposed off when the latter is filed to invoke Res Judicata.
  • The parties can have a say when the subsequent suit is stayed explaining why it was instituted and can withdraw the same through amicable settlement in Res Subjudice. But, in Res Judicata, the intrest of the parties are irrelevant as it has universal application.
  • Res Subjudice is dealt in Section 10 of CPC whereas Res Judicata is dealt in Section 11 of CPC.
  • Res Subjudice bars the trail of the suit only but not the institution of plaint. Whereas, Res Judicata directly bars the suit at all stages and proceedings.

Through all these justifications and reasoning, we can conclusive comment that the primary objective of Res Subjudice and Res Judicata is to prevent complexity of procedures, to prevent harassment of the parties, to prevent the wastage of resources, to reduce time waste and work load of Court and to stop delay in the procedures.

The court is given with its own discretionary powers recognized under this Code of Civil Procedure, 1908, under Sec 10 Stay of Suits. Lastly, it is of grave importance, to keep in mind that this Section 10 of CPC works, to reduce the conflicting decisions and wastage of resources which makes it inevitable, being a Basic Structure of CPC that can never be touched or removed.

Award Winning Article Is Written By: Mr.Sujan Ganesh

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