Res Subjudice

CONTENTS

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1.

LIST OF CASES

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2.

INTRODUCTION

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3.

RES SUB JUDICE

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4.

CONDITIONS REQUIRED

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5.

EXTENT AND APPLICABILITY

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6.

SUIT BEFORE A FOREIGN COURT

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7.

WAIVER

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8.

CONTRAVENTION

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9.

DISTINCTION BETWEEN RE SUB JUDICE AND RES JUDICATA

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CONCLUSION

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11.

REFERENCES

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LIST OF CASES

(i) Annamalay Chetty v Thornhill (13) (ii) Dees Piston Ltd v State Bank of India (12) (iii) Escorts Const. Equipments Ltd v Action Const. Equipments Ltd (11) (iv) National Institute of Medical Health and Neuro Sciences v C. Parameshwara (9) (v) Prism entertainment Pvt. Ltd. v Prasad productions Pvt. Ltd (14) (vi) Sohal Engineering Works v Rustom Jehangir Vakil Mills Ltd. (7)

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INTRODUCTION

The Civil Procedure Code of 1908 was enacted with a view to have an unvarying civil procedure in all the courts of the country. The code does not only contain only provisions and rules but also doctrines that are to be necessarily made applicable in all the courts in all suits in order to not degrade the standards and functioning of the Judiciary in the eyes of the public that would lead to the destruction of faith and trust in the judiciary and its functioning. The judiciary, being one of the most important organs of the state to restore peace and render justice, the doctrine of Res judicata and Res Sub Judice ensure that the productive pace of getting justice in the court is achieved and maintained in order to assess judicial efficiency. 1 Taken from the Latin word Subjudice, meaning ‘under judgement’, the principle of Res Sub Judice forms one of the foundations of the Indian legal system. With a large number of pending cases, the Indian Judiciary is overburdened and faces a stark lack of resources. As such in order to curb or avoid multiplicity of suits dealing with the same issues between the same parties the Principle of Res Sub Judice is applied.

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The doctrine of Res Sub Judice, in its essence, has an ancient history, although it is difficult to say definitely whether or not the doctrine is as it stands now. Understood in the distant past by both Hindu lawyers and Muslim jurists, it was known to ancient 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”.

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RES SUB JUDICE

Provided for under Section 10 of the Code of Civil Procedure, this principle provides 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, 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 like jurisdiction, or before the Supreme Court.” As such when two or more cases are filled between the same parties on the same subject matter, in two or more different Courts, the competent court has the power to “Stay Proceedings” of another Court. This doctrine aims at preventing 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 claimed2 and protects litigants from unnecessary harassment.3 2 3

https://blog.ipleaders.in/res-judicata-res-sub-judice/ Spa Annamalay Chetty v BA Thornhill

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Thus, a civil court shall not proceed with a trail of any suit in which the matter in issue is directly and substantially in issue in a 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.4 The section, however, does not empower one court to stay the proceedings of another court. For example, a district court exercising insolvency jurisdiction under the Provincial Insolvency Act 1902, cannot under this section stay a suit pending against the insolvent in a subordinate court. However, since the provisions of this section are mandatory, the Court before which the subsequent suit is pending ought to stay it where all the conditions laid down in the section exist.5 In Sohal Engineering Works v Rustom Jehangir Vakil Mills Ltd. 6 It was held that “On plain reading of the contents of Section 10 of the Code, it is crystal clear that the object of the provision is to prevent courts of concurrent jurisdiction from adjudicating upon parallel litigations between the same parties having the same matter in issue with a view to avoiding conflict of decisions. The policy of the law is that if the matter in issue in the two parallel suits is identical, in the interest of judicial comity, the court in which the subsequently instituted suit is pending shall stay the proceedings and allow the previously instituted suit to proceed.” Had Section 10 not been enacted, the consequences would have been disastrous. The litigants would have been free to file as many suits as they wished on the same subject matter claiming the same relief. The number of suits would have been unlimited without any control or check. The courts would have 4

India Bank v Maharashtra State Cop. Marketing Federation Ltd. C. F. Sequira v P Francisco 6 AIR 1981 Guj 110: (1981) 22 Guj LR 495 5

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been flooded with several litigations by the same plaintiff against the same defendant in respect of the same cause of action. The defendant would never have been relieved of litigations and would have endlessly faced a series of civil proceedings in different courts on the same subject matter. There would have been a likelihood of one court taking one view and another court taking a contrary view, thereby degrading the value of judicial pronouncements.

AT WHAT STAGE AN APPLICATION UNDER SECTION 10 CAN BE FILED:

The application made under Section 10 of the Code of Civil Procedure is to be decided after filing of the written statement. However, that does not mean that the court has no jurisdiction to entertain the application prior to filing the written statement. In a given case, the court may decide the question before filing of the written statement if the defendant makes available the copy of the plaint of the earlier suit and the other documents which enables the court to decide as to what the dispute between the parties is.

CONDITIONS REQUIRED TO ATTRACT SECTION 10 The conditions required to be satisfied for application of Section 10 are as follows: (a)There must be two suits, one previously instituted and the other subsequently instituted.

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It is the pendency of the previously instituted suit that constitutes the bar to the trial of the subsequent suit. The word ‘suit’ though includes an appeal, it does not include an application for leave to appeal to the Supreme Court, since the application may not be granted at all, and if granted, the applicant may not prefer any appeal. Previously instituted suit means suit instituted prior in time and not one decided earlier.7 Section 10 does not apply if one of the two proceedings is not a suit. The burden is on the defendant to show that the case falls under Section 10.8 (b)The matter in issue in the second suit must be directly and substantially be in issue in the first suit. In other words, the matters in issue should be identical in both the suits. In National Institute of Medical Health and Neuro Sciences v C. Parameshwara9, a pharmacist was removed from service for misappropriation of drugs. The order of removal was set aside by the Labour Court. The employer challenged the order of the Labour Court by filing a writ petition. The employer also filed a civil suit for recovery of loss caused to him. Hence, an application was moved to stay the suit. The object of Section 10 is to prevent the courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of same matter in issue. In view of this, the application was held to be not tenable as the subject matter of the two proceedings is entirely distinct and different. As such, Section 10 applies only in cases where the whole subject matter in both suits is identical. The key words in Section 10 are “the matter in issue is directly and substantially in issue”, such being in contrast to the words “incidentally and 7

MULLA, Code of Civil Procedure, Lexis Nexis, Fourteenth Edition Subramanyya v Narsimha AIR 1972 AP 186 9 AIR 2005 SC 242 8

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collaterally in issue”. Therefore Section 10 would only apply If there is identity of the matter in issue in both the suits, meaning thereby that the whole subject matter in both the proceedings is identical. (c)The previously instituted suit should be pending before the court in which the subsequent suit is brought or in any other court in India. It is important to appreciate that pendency of a previously instituted suit is one of the most essential condition for application of Section 10, the question arises as to when a suit is considered to be pending. As a matter of fact, a suit remains pending so long as decree is drawn-up. According to Section 2(2) of this Code, a decree is the formal expression of adjudication by a civil court in a suit that conclusively determines if the rights of the parties with regard to all or any of the matters in controversy in the suit. Therefore, until the rights of parties to a suit are conclusively determined by the court by passing a decree, the suit remains pending. 10 (d)Two suits should be between the same parties. The expression ‘the same parties’ means the parties between whom the matter substantially in issue has arisen and also has to be decided. The section does not become inapplicable by reason of there being in addition to a party against whom no separate and substantial issue is raised 11 and it would suffice if there is sufficient identity of parties. The previous suit need not be between the same parties as it can be between their privies. 12 10

The Code of Civil Procedure, D. N. Mathur, Central Law Publications, Second Edition 2011. Mahanju Prasad v Prayag AIR 1975 Gan 40. 12 Civil Procedure, C. K. Takwani, Eastern Book Company, Fifth Edition(reprinted) 2006. 11

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(e)The parties to the suit must be litigating under the same title i.e., same capacity. (f) The court trying the previous suit must be competent to grant relief asked for in the subsequent suit. The first Court must have the jurisdiction to grant the relief claimed in the second suit.13 In Escorts Const. Equipments Ltd v Action Const. Equipments Ltd, the defendant had filed for stay of the present suit under Section 10 on the ground that the matter in controversy is pending in Jamshedpur Court also. Such was opposed by the plaintiff on the ground that the defendants had raised the issue of jurisdiction of Jamshedpur Court to entertain the same suit and as such the application under section 10 can only be filed in the present suit, only if the objection with respect to the lack of jurisdiction was withdrawn in Jamshedpur. The court held that in order for Section 10 to be invoked, the following conditions must be satisfied: (i) Matter in issue in both the suits to be substantially the same. (ii) Suit must be between the same parties or parties litigating under them. (iii) Previously instituted suit to be in the same Court or a different Court, which has the jurisdiction to grant the relief asked. (iv) There is nothing to the effect that the defendant should not question the competency of previous court in the previously instituted suit, and there remains the fact that the plaintiff in their defence against Section 10 had not 13

Mitra Line v Finlay Mills AIR 1982 Cal 41.

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stated that the Jamshedpur Court is competent. Thus, relief was granted to the defendant. In Dees Piston Ltd v State Bank of India, it was held that when a matter is before a competent Civil Court, the National Commission will not entertain a petition in respect of identical subject matter under the Consumer Protection Act. Extent and Applicability The provisions of this section apply only to suits and not to other proceedings. Section 10. Therefore, cannot apply where one of the two proceedings is not a suit. This Section does not cover election proceedings or execution proceedings to name a few. Since the provision applies only to the suits instituted in a civil court, therefore, it has no application to any other proceeding of different nature than a suit instituted under any other statue. If the previously or subsequently instituted suit is not tenable, this provision will not apply as it applies only to those suits which are legally maintainable. The provisions of Section 10 are clear and specific, the language used does not suffer from ambiguity. The words employed are definite and certain in their meaning. The provision is mandatory. When the conditions laid down are satisfied, the court is bound to stay proceedings of any suit in which the matter in issue is also directly and substantially in issue in previously instituted suit between the same parties.

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With regards to which court shall entertain an application for stay and which suit shall be stayed, the Section 10 provides that such application for stay may be presented in the Court in which subsequently instituted suit is pending and not to the court in which previous suit is pending.

WHETHER SECTION 10 IS APPLICABLE TO CRIMINAL PROCEEDINGS: As a principle of law, it cannot be said that whenever a criminal case is instituted, then the civil suit on the same cause of action must be stayed. The Court may be guided by attending circumstances.14 The proceedings in a suit for recovery of money on the basis of a dishonoured cheque cannot be stayed merely because a criminal case under Section 138 of the Negotiable Instruments Act has already been instituted. The Court rejected the prayer of the petitioner to stay the proceedings of the civil suit on the ground that criminal cases relating to the same property were pending before the criminal court.15

TEST The test for applicability of Section 10 is whether the decision in a previously instituted suit would operate as Res Judicata in the subsequent suit. If it is so, the subsequent suit must be stayed.16 Section 10 has no relevance either to the subject

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Sai Udhyog v Central Bank of India, AIR 1998 MP 191 Code of Civil Procedure, Sudipto Sarkar, V. R. Mahonar, Wadhwa Nagpur, Volume I, Eleventh Edition, 2008 16 Civil Procedure, C. K. Takwani, Eastern Book Company, Fifth Edition(reprinted) 2006. 15

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matter of the suit or to the cause of action but to the questions involved in the suit. As observed by the Privy Council in Annamalay Chetty v Thornhill17, if the decision in one suit would have the effect of being res judicata in respect of the issues arising in the subsequently in respect of the issues arising in the subsequently instituted suit, then it would not be proper to proceed with the trial of the very same issues in a subsequently instituted suit.18 Unless the decision of the suit operates as res judicata in the other suit, it cannot be said that the matter in issue is “directly and substantially” the same in both the suits. In Prism entertainment Pvt. Ltd. v Prasad productions Pvt. Ltd 19, it was held that to decide whether the second suit is hit by Section 10 or not, the test is to find out whether the plaint in one suit would be the written statement in the other suit or not. Once such test is positive a decision in one suit would operate as res judicata in the other suit.

SUIT BEFORE A FOREIGN COURT The pendency of a suit in a foreign court cannot be treated as a previously instituted suit within the meaning of Section 10 and does not preclude the Courts in India from trying a suit founded on the same cause of action. But if the suit is pending in an Indian Court and a party within the jurisdiction of such court is prosecuting in a suit on the same cause of action in a foreign court, the High Court can restrain him from continuing the action in the foreign court, if it 17

AIR 1931 PC 263 Code of Civil Porcedure Volume I, C. K. Thakker, Eastern Book Company, 2000 Edition. 19 AIR 2006 Cal 206 18

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is in the opinion of the High Court that prosecution of such action is opposed to equity. This is based on the principle that the court acts in personam and will not allow anyone to act in contrary to justice, equity and good conscience.20

WAIVER Section 10 merely lays down a rule of procedure and does not vest any substantive right in the parties. It does not affect the jurisdiction of the court trying the second suit. Hence, the parties can waive such objection. If the parties’ consent to the later suit being tried, they cannot subsequently turn around and challenge the validity of the decision invoking Section 10.

CONTRAVENTION OF SECTION 10 When a decree is passed in contravention of section 10, the decree does not convert into a nullity, and therefore cannot be disregarded in execution proceedings. The legal value of the decree passed by the court remains intact, even if it is passed in disregard of this principle. With respect to interlocutory/interim orders, these can be considered as an exception to the doctrine of Res Sub Judice. Certain orders can be passed without a trial, as an attachment. Hence, such orders are not affected by Res Sub Judice. As such, the rule of Res Sub Judice only bars the trial and does not bar the courts from adjudicating upon interlocutory orders such as the appointment of receiver, injunction or attachment.

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Vanichand v Lakhmichand, AIR 1920 Bom 309.

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Distinction between Res Sub Judice and Res Judicata

The two rules of Res Sub Judice and Res judicata form two of the most important doctrines provided for in the Code of Civil Procedure. While operating towards the same objective of ensuring avoidance of multiplicity of suits in the Courts of law, they share among them the following differences: (i)

Res Sub Judice is discussed in Section 10 of the Code of Civil Procedure while Res Judicata is discussed in Section 11 of the same. (ii) Res Sub Judice applies to the proceedings pending in the Court while Res Judicata applies to matters already adjudicated upon. (iii) Res Sub Judice stays the latter suit instituted in the court which has the same matter directly and substantially in issue in the previous suit, while Res Judicata bars the trial of a suit in which the matter directly and substantially in issue has already been adjudicated upon in a previous suit. (iv) In the case of Res Sub Judice, the previously instituted suit must be pending in the same court which the subsequent suit was brought or in a different court having jurisdiction to grant the relief claimed while in Res Judicata, no such requirement is needed. 21

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CONCLUSION

With the ever-increasing cases in the courts and the heightened burden on the courts because of several frivolous and repetitive suits, it is inevitable that to ensure smooth functioning of the judicial system as well as for providing justice to need parties that the doctrines of Res Judicata and Res Sub Judice be rigorously implemented. These doctrines must not however be used for the purpose of avoidance of justice. Rather, they must be used to make the judiciary more efficient.

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REFERENCES

Books: (i)

Code of Civil Procedure, Sudipto Sarkar and V. R. Manohar, 11th Edition, Reprint 2008, Wadhwa Nagpur Publishing. (ii) The Code of Civil Procedure, D. N. Mathur, 2 nd Edition, 2011, Central Law Publications. (iii) Code of Civil Procedure, C. K. Thakker, Volume 1, 2000 Edition, Eastern Book Company. (iv) Code of Civil Procedure, Mulla, 14th Edition, 2005, Lexis Nexis. (v) Civil Procedure, C. K. Takwani, 5th Edition(reprint), 2006, Eastern Book Company.

Internet Sources: (i) (ii)

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