Section 10 deals with Doctrine of Res Sub-Judice. ‘Res’ means matter or litigation and Sub-Judice means pending (under judgment). Conjoining the two, it implies that the rule of Res Sub-Judice relates to a matter which is pending judicial enquiry. In other words, this rule applies where a matter is already pending before a competent court for the purpose of adjudication Section 10 of CPC deals with the stay of civil suits.
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 like jurisdiction, or before the Supreme Court.[1] The ingredients of Section 10 are as follows:-
1. Court shall proceed with the trial of any suit:- It is such court where subsequent litigation has been instituted and not the court which has taken the adjudication for previous litigation. Technically speaking, section 10 applies to those litigations which come within the ambit of section 9 read with section 26(2) of the Code. The term ‘trial’ in this sense implies to all the proceedings of a civil suit. So, the subsequent litigation needs to be stayed notwithstanding the stage at which it is.
It were intended to bar the separate trial of any suit in which the matter in issue was also directly and substantially in issue in a previously instituted suit between the same parties. But these words do not apply to the simultaneous hearing of a late and earlier suit after the consolidation of the two. Suit with the meaning of section 10 includes a pending appeal[2] and even if second appeal is lying undecided it is a previously instituted suit for the purposes of the section.[3]
2. Matter directly and substantially in issue:- It means the rights litigated between the parties i.e. the facts on which the right is claimed and the law applicable to the determination of that issue. The words “matter in issue” used in Section 10 do not mean that entire subject-matter of the subsequent suit and the previous suit must be the same. These words mean all disputed material questions in the subsequent suit which are directly and substantially in question in the previous suit.
‘Matter in issue’ with respect to the Evidence Act, 1872 is of two types:-
- Matter directly and substantially in issue:-‘directly’ means immediately, without intervention. ‘Substantially’ implies essentially or materially.
- Matter collaterally and incidentally in issue
3. Same Parties:- The previously instituted suit must have been a suit between the same parties or between the parties under whom they or any of them is claiming. Party is a person whose name appears on the record at the time of the decision.
4. Same title:- It means same capacity. Title refers to the capacity or interest of a party that is to say whether he sues or is sued for himself in his own interest or for himself as representing the interest of another.
5. Previously instituted suit must be pending:- The previously instituted suit between the parties must be a pending one: (a) in the same Court in which the subsequent suit is brought, or (b) in any Court in India, or (c) in any Court beyond the limits of India established or constituted by the Central Government, or (d) before the Supreme Court[4].
Illstrations
- ‘A’ an agent of ‘S’ at Jaipur agreed to sell S’s goods in Bangalore. ‘A’ the agent files suit for balance of accounts in Bangalore. ‘S’ sues the agent ‘A’ for accounts and his negligence in Jaipur; while case is pending in Bangalore. In this case, Jaipur Court is precluded from conducting trial and can petition Bangalore Court to direct stay of proceedings against Jaipur Court.
- ‘A’ and ‘B’ entered into contract for the sale of machine. ‘A’ first filed a suit against ‘B’ at court Bombay, demanding recovery of the entire amount paid. Subsequently, ‘B’ filed a suit against ‘A’ at court Delhi demanding Rs.18, 000 as outstanding balance. In A’s suit, ‘B’ took the defence that since both the suits are on similar issues, A’s suit should be stayed. However, court Delhi held that since A’s suit is the first suit and the subsequent suit had issues similar to the first suit, it is the subsequent suit that is liable to be stayed.
Nature and Scope:
Section 10 declares that no Court should proceed with the trial 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. [5]
The Rule applies to trial of a suit and not the institution thereof. It also does not preclude a Court from passing interim orders, such as, grant of injunction or stay, appointment of receiver[6]. It, however, applies to appeals[7] and revisions.[8]
Object
The object of the rule contained in Section 10 is to prevent courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same cause of action, the same subject-matter and the same relief. The policy of law is to confine a plaintiff to one litigation, thus obviating the possibility of two contradictory verdicts by one and the same court in respect of the same relief.[9]
Res Sub-Judice and Res Judicata:
Res Sub-Judice |
Res Judicata |
|
It bars trial of a suit which is pending decision in a previously instituted suit. |
It bars the trial of a suit or an issue which has been decided in a former suit. |
|
It applies to a matter pending trial. |
It applies to a matter adjudicated upon. |
Conditions
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 suit is brought or in any other court in India or in any court established or continued by the central Government or before the Supreme Court.
5) The Court in which the previous suit is instituted must have jurisdiction to grant the relief claimed in the subsequent suit.
6) Such parties must be litigating under the same title in both the suits.
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.[10] Similarly, a Court has inherent power to consolidate different suits between the same parties in which the matter in issue is substantially the same.[11]
Suit pending in foreign Court
Explanation to section 10 provides that 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 a foreign Court.
Frequently Asked Questions:
1. Whether the court can pass an order of consolidation of both the suits?
Since the main purpose of Section 10 is to avoid two conflicting decisions, a court in an appropriate case can pass an order of consolidation of both the suits.
2: Whether the decree passed in contravention of Section 10 is a nullity?
A decree passed in contravention of Section 10 isnot a nullity and, therefore, cannot be disregarded in execution proceedings.
3: Whether the interim orders, such as, attachment before judgment, temporary injunction, appointment of receiver, amendment of plaint or written statement, etc. can be passed when the suit is stayed under section 10 of the Civil Procedure Code?
An order of stay of suit does not take away the power of the court from passing interim orders. Hence, in a stayed suit, it is open to the court to make interim orders, such as, attachment before judgment, temporary injunction, appointment of receiver, amendment of plaint or written statement, etc.
4. Whether subsequent suit can be decided on merits?
Section 10, does not take away power of the court to examine the merits of the matter. If the court is satisfied that subsequent suit can be decided purely on legal point, it is open to the court to decide such suit.
Edited by Soma Sarkar
Approved & Published – Sakshi Raje
Reference:
[1]Section 10 of Civil Procedure Code,1908
[2]Dinshaw vs. Galstaun, AIR 1927 Bom 245
[3]AmbikaSahu v. SumitraSahu, AIR 1990 Ori 127
[4]ArumughaUdayar rep. by Power Agent Periyasami v. Lakshmi, AIR 2005 CHN 717
[5] Indian Bank vs. Maharashtra State Coop. Marketing Federation,(1998) 5 SCC 69
[6] Indian Bank vs. Maharashtra State Coop. Marketing Federation, AIR 1998 SC 1952
[7]Raj Spinning Mills vs. A.G. King Ltd. AIR 1954 Punj 113
[8]VaithilingaPandaraSannadhi, Re, AIR 1930 Mad. 381
[9]Balkishan vs. kishan Lal, ILR (1889) 11 ALL 148 (FB)
[10]Jado Rai vs. Onkar Prasad, AIR 1975 All 413
[11]P.P.Gupta vs. East Asiatic Co. , AIR 1960 ALL 184
