Res means “thing” or “things” or “matter”. Sub Judice in Latin means “under a judge”/under judgment. Res Sub Judice, in Latin, means a matter or case that is before a judge or court for determination.[1]. Section 10 of Code of Civil Procedure (hereinafter referred CPC) deals with Res sub-judice: “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 to litigate 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 the jurisdiction, or before (the Supreme Court).”
Points gathered from the above section:
- There shall be two simultaneous suits filed between same parties or their representatives ie one previously instituted and another subsequently instituted.
- The matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit. ‘Direct’ means without any intervention. ‘Substantial’ means that the matter is the core and essential one or it should be material in the matter.
- The litigation is under the same title or the subject matter is the same. The parties should be contesting under the same capacity.
- Suits shall be between the same parties or their representatives.
- The case is pending in any Court under control of the Central Government.
- The former court in which the first case filed has jurisdiction to grant the relief claimed.
Illustration: A and B agreed on the supply of certain articles. B agreed to prepay A for its supply. A delivered the articles in which some were damaged. B insisted to deliver some more goods and told that he will pay later. A did so, but B didn’t pay telling that he set off the price for damaged goods. A filed case for the realisation of money. B later filed another case for damages. The later suit has to be stayed since the matter is one and the same. B could enter upon the first case and in defense seek to set off or can file a counter-claim also.
The real test is to check whether a final decision in the first suit acts as res judicata in the second suit.
Illustration: If A filed a case for enforcement of a contract against B and on a later date B filed the same case against A on the same cause of action on the same subject matter in which all the issues are the same, it is hit by the principle of res sub judice. The contract between A and is the subject matter in both the suits. Hence whatever dispute is between A and B, it could be decided on merits in the first suit itself. There is no need for a second suit.
We can gather the intention of the Section as below:
- Prevents court of competent and concurrent jurisdiction from simultaneously trying two parallel suits with respect to the same subject matter.
- By doing above, it helps in preventing multiplicity of proceedings.
- It saves the time of Courts.
- It prevents conflicting decisions.
Q. Whether a suit will be stayed on the ground that a former suit on same lines is pending in a foreign Court?
The answer is no. Explanation given in the above Section clearly mentions this point.
In short, res sub judice deals with the stay of suits. Supreme Court in National Institute of Mental Health and Neuro Sciences versus C Parameshware[2] held that the object of Res Sub Judice principle is to prevent Court of concurrent jurisdiction from trying two parallel suits simultaneously in respect of the same matter in issue as otherwise, there will be conflict of findings on issues. The scope of Section 10 refers to a suit instituted in a civil court and it cannot apply to proceedings of other nature instituted based on any other enactment. The real test to know whether the principle of res subjudice will apply is to see whether the final decision, if reached by the previous court, will operate as Res judicata in the subsequent suit.[3] The matter must be incidental or collateral in issue in the previous suit. Thus the whole matter must be identical in both cases to apply the principle.
Q. Whether the principle of Res Sub Judice prevents the filing of a subsequent suit?
Section 10 does not prevent the filing of the subsequent suit. It bars trial of the subsequent suit. Trial of the suit means the examination of witnesses, filing of documents and advance arguments related to the case. Thus it is clear that only trial can be stayed as per the above principle.
In Indian Bank vs. Maharashtra State Co-Op. Marketing Federation Limited, [4] it is made clear that Courts can pass interlocutory orders in the subsequent suit.
Q. Which case to be stayed as per Section 10? Do parties have a choice to stay the former suit or subsequent suit?
As per G.C.Care Centre & Hospital versus O.P.Care Private Limited[5], the latter suit has to be stayed and not the earlier one.
Q. Will the principle of Res Sub Judice apply to counter-claims?
Counter-claim is a suit filed by the opposite party in the same suit. Thus the subject matter will be the same and parties will be the same. However, in M/s Aminchand Pyarelal versus Union of India[6] it was made clear that this section will not apply to counter-claims.
Counter-claim is a cross suit by the defendant. So for deciding the issue on merits counter- claim will not be stayed.
Q. Can HC jurisdiction be invoked to stay the suit?
Mayar (HK Ltd) versus Owners and Parties, Vessel M.V.Fortune Express[7], it was held that inherent discretionary jurisdiction of High Court could be invoked to stay suit in case of res sub judice. But this power should be used cautiously and rarely.
Q. Whether the rule applies to criminal proceedings?
No. The rule prescribed in the CPC relates to a suit of civil nature. Hence, criminal procedure is not a bar to institute and try the suit in civil Court.
Courts Power has to be considered
Before passing an order of Stay of suit it shall be considered whether the former Court is competent to pass a final order on the subject matter in the subsequent suit. Secondly, it shall be considered whether the previous Court is having pecuniary jurisdiction. In such cases Section, 10 will not apply.[8]
Q. Whether Writ Proceeding is affected by the above rule?
Writ proceedings will not come under the rule. T.Seethapathy v. Prl. Dist. Judge, Gudur[9].
Q. On whom the burden lies?
Undoubtedly, the burden is upon the person claiming that the suit is barred to prove that the latter suit is the one to be stayed. He shall establish that the second suit is for the same relief and on the same cause of action.
Q. Where should one challenge on the basis of the rule?
One should challenge before the same Court where he wants the suit to be stayed. Sparingly, High Courts under inherent jurisdiction can stay the suit.
Q. How to challenge on the ground of Res Sub Judice?
There should be specific pleading regarding the same. The defendant can plead the same in his written statement.
Matters out of the purview of Section 10 rule
The following matter are out of the purview of Res Sub Judice.
- Writ Proceedings.
- Pauper proceedings.
- Election proceedings.
- Criminal Cases.
- Guardian and Wards Act.
- Foreign Courts
- Only some issues are common and other issues are entirely different.
- Same parties but different issues.
Q. What will happen if a Court passed a decree foregoing the statutory provision of Res Sub Judice?
In Pukhraj D. Jain vs G.Gopalakrishna[10], it was stated that the rule relating to Res Sub Judice merely states a rule of procedure. Thus if a decree is passed contrary to such rule, it will not be a nullity.
Other Recourses by Court?
The court can use its inherent power to either stay the suit or consolidate two suits together and try it as one case.
Footnotes
- https://thelawdictionary.org/sub-judice/
- (2005) 2 SCC 256 AIR 2005 SC 242
- Devanayagi Ammal vs. Manicka Konar 2006(4) CTC 556
- AIR 1998 SC 1952
- AIR 2004 SC 3339
- (1977) 79 Bom LR1
- 2006 (3) SCC 100
- Desh BhushanJain vs. K.C.Mahajan(1997) 67 DLT 523
- 2009(4) ALT 800
- AIR 2004 SC 3504
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