What is the Rule of sub judice?
The phrase Res Sub judice is Latin maxim which means the “under judgment”. The rule of the sub judice is based on the public policy which prohibits the plaintiff to file two parallel cases on the same subject matter and restricts the chances of having two contradictory judgments by the two courts. The purpose of the doctrine of Res Sub judice is to prevent a multiplicity of the proceedings and to refrain two conflicting decisions. The doctrine bars the parallel trial of the suit where the matter is pending to adjudicate in the former suit. but it does not restrict in filling the subsequent suit.
How the Rule of Res Sub Judice originated?
We did not find the direct origin of the doctrine of Res Sub Judice. The roots of this rule can be found in Roman law. Under Roman Law, this doctrine was originated from the doctrine of exception rei judicatae which means the “previous judgment”.
In the ancient history importance of this rule was also understood by both Hindu and Muslim Jurists. Under Hindu Ancient Law Rule of the sub judice was popularly knowns as the Purva Nyaya or former Judgment.
Where we can find this rule in India?
The doctrine of Res sub judice is not directly defined in the Civil Procedure Code, 1908. But principles of Res sub judice can be found in Section 10 of CPC. Section 10- Stay of suit deals with the concept of Res Sub Judice.
What is Section 10 of the Civil Procedure Code, 1908
10. 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 have 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.
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
Section 10 of CPC states that no court will initiate the trial of any suit if the issues are directly or substantially related to the previously instituted suit between the same parties or parties litigating on behalf of them under the same title and the matter is pending before the court having the competent jurisdiction in the territory of India or any court beyond the limits of India established by central governments having the same jurisdiction or before supreme court. Section. If parallel suits come before the competent court, section 10 gives the power to put a stay on the proceedings in another court. Section 10 prohibits the trial of parallel litigation where the same cause of action arises between the same parties on the same subject matter. This section is inserted in the CPC with the purpose that the defendant should not suffer twice for the same offense.
For eg There was a contract between A & B in which B need to supply raw materials to the A. B did not supply goods to A. There was the breach of a contractual obligation by the B. A files suits against B in the competent court. Meanwhile, the decision of this court was pending and A filed another suit against B in another court. Competent court by virtue of the power given in Section 10 put stay on proceedings of another court because the subject matter of the case was same and the decision was pending.
What is the objective behind inserting section 10?
- To prevent parallel litigation in two different courts between the same parties on the same subject matter.
- To prevent wastage of the court’s resources and time
- To avoid two contradictory Decisions on the same subject matter
- To reduce the burden on the courts
- To protect the rights of the other party.
- To avoid unnecessary delay
What is the scope of Section 10
The scope of section 10 is clear, unambiguous, definite & Mandatory. The word ‘shall’ in the provision makes it mandatory. Section 10 does not require that matter in the issues of two suits should be the same but it requires that matter should be directly or substantially be the same. Stay of proceedings is necessary for the court to avoid municipality of the proceedings and harassments to the parties. Section 10 authorizes only stay on proceedings but not a dismissal of the proceedings.. In execution proceedings, the order passed by the court in contravene to Section 10 is not a nullity.
What are the essentials of Section 10?
- There should be two suits
- The suits must be between the same parties or their successors
- The matter in the issue in the later suit must be directly and substantially the same as in the previous suits
- Both the suits should be pending before the court of law
- The parties must be litigating under the same title in both the suits.
If the above essentials are fulfilled, the court can stay the proceedings under Section 10 of CPC.
What are the conditions necessary for the application of Section 10?
- Same Parties – For imposing stay under Section 10, the identity of the parties is enough. Parties in two suits need not be the same. To apply Section 10 it is enough that previously instituted suit is between parties under whom they or any of them claim litigating under the same title.
- Matter in the issue must be same – For the application of section 10, it is enough to establish that substance of the matter in controversy in two suits are same. The Identity of reliefs is not necessary for the applicability of this section.
- The suit must be pending – Section 10 gives the power to put stay on proceedings only if previously suit is pending. It is a duty and responsibility on the defendant to make the court aware about pending of former suit. But if it is pending in foreign court, then Section is not applied.
- Title must be the same – To apply section 10, the parties must be litigating under the same title under both suits.
- The court should be competent – Section 10 of CPC is only applied when the previous suit is pending before the competent court.
When court cannot apply the doctrine of Res sub judice?
- In the case of Alimmllah vs. Sheikh, the court held that the rule of sub judice is not applied when issues in both suits are distinct and different.
- In the case of Abdul vs. Asrafun, the court held that rule is not applied when there are some common issues and some different.
- When the parties are the same but there are different issues between them.
- It is not necessary for the applicability of Section 10 that all the issues in the prior instituted suit should also be issued in the later suit.
Does Section 10 apply to the foreign courts?
No, Section 10 of the Civil Procedure Code do not apply to the Foreign courts. The Pending of the suit before any foreign court does not bar Indian courts to initiate proceedings of the case on the same cause of action.
Difference between Res Sub Judice and Res Sub Judicata:
|Sr. n.||Res Sub Judice||Res Judicata|
|1||This Rule is mentioned in Section 10 of CPC.||This Rule is Mentioned in Section 11 of the CPC|
|2||It is not directly defined in CPC||It is directly defined in the CPC|
|3||There should be two suits and matter of the previously instituted suit is still not decided by the court||There are two suits in which the former suit is already decided by the court|
|4||In this, the matter in issue in both the suits must be substantially the same||In this, the matter directly and substantially in issue in both the suits are actually or constructively same|
|5||In this rule, parties are litigating in both the suits under the same title||In this, such parties must have been under the same title in the former suit|
|6||Both suits should be between the same parties or their representatives||Issue are settled between the parties in the former suit|
|7||It apply to only suits and appeals||It applies to both suits and applications|
|8||Defense of Res Judice cannot be taken in Written Statements||Defense of the Res SubJudice can be taken into Written Statements|
|9||It prohibits two parallel proceedings between the same parties||It prohibits the second trial of the same dispute between the same parties|
What is the inherent power of the Court to put stay?
In the situations when Section 10 is not applicable, the court can put stay on the proceedings under the power given in Section 151 of the Civil Procedure Code. Section 151 gives inherent power to the court to make such order which is necessary for securing ends of justice and to prevent abuse of the process of the court. Section 151 gives discretionary power to secure ends of justice when there is no application of Section 10.
It is concluded
that the rule of sub judice can be found in Section 10 of the CPC. Section 10
bars the two parallel litigation between the same parties on the same cause of
action. The basic reasoning behind this provision is to prevent wastage of
courts resource, protect the right of the defendant, reduce the burden on
courts and avoid two contradictory decision. This provision was inserted in CPC
to meet the end of the justice and prevent abuse of the court. There are lots
of cases pending before the Indian Judiciary system. This doctrine helps the
courts to prohibit repetitive suits on the same cause of the action. Thus
Section 10 or the principle of Res Sub Judice makes our Judiciary system more
 Trikamda Jethabhai v. Jivraj Kalianji AIR 1942 Bombay, 314,316
 Radhey Shyam Agarwal vs. Kashinath Vaish, AIR 1960 MP 169.
 43DL RLL3
 37 DLR 271
Symbiosis Law School, NOIDA
email: [email protected]