CONTENTS

SL NO PAGE NO

1. LIST OF CASES 3

2. INTRODUCTION 4-5

3. RES SUB JUDICE 6-8

4. CONDITIONS REQUIRED 9-12

5. EXTENT AND APPLICABILITY 12-14

6. SUIT BEFORE A FOREIGN COURT 14

7. WAIVER 15

8. CONTRAVENTION 15

9. DISTINCTION BETWEEN RE SUB JUDICE AND 15-16

RES JUDICATA

10. CONCLUSION 17

11. REFERENCES 18

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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.

1
Blog.Ipleaders.in

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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
https://blog.ipleaders.in/res-judicata-res-sub-judice/
3
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.
5
C. F. Sequira v P Francisco
6
AIR 1981 Guj 110: (1981) 22 Guj LR 495

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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
8
Subramanyya v Narsimha AIR 1972 AP 186
9
AIR 2005 SC 242

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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.
11
Mahanju Prasad v Prayag AIR 1975 Gan 40.
12
Civil Procedure, C. K. Takwani, Eastern Book Company, Fifth Edition(reprinted) 2006.

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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

14
Sai Udhyog v Central Bank of India, AIR 1998 MP 191
15
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.

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

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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.

20
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

21
https://www.legalbites.in/res-sub-judice-res-judicata/

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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) Blog.Ipleaders.in
(ii) https://www.legalbites.in/res-sub-judice-res-judicata/

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