Doctrine of Res subjudice is an important doctrine provided under section 10 of the Code of Civil Procedure (the code), which deals with stay of civil suits, it 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 previous instituted suit between the same parties and the court in which the previous suit is pending is competent to grant the relief which is claimed. ‘Res’ means matter or litigation and ‘subjudice’ means pending hence ‘res subjudice’ means that matter is pending before a competent court for adjudication.
Nature and Scope
This doctrine applies to the trial of suit and not merely for the institution of the suit, and it does not prevent a court from passing interim orders for the grant of injunction or stay, it applies to appeals and revisions. The doctrine of Res subjudice means the stay of the suit under section 10 of the code. This section is applicable only when the matter in the controversy is the same.
The subsequent suit cannot be dismissed but is only stayed. The word ‘suit’ ordinarily means a civil proceeding instituted by way of presentation of a plaint. It is not defined in the code. In Pandurang Ramchandra vs. Shantibai Ramchandra, the Supreme Court has stated ‘suit is to be understood to apply on any proceeding in a court of justice by which an individual pursues that remedy which the law affords.’
Explanation to this rule under section 10 clearly provides that the pendency of a suit in foreign courts does not prevent the courts in India from trying a suit founded on the same cause of action. There is no bar on the power of an Indian court to try a subsequently instituted suit even if a suit which is previously instituted is pending in a foreign court. A foreign court is defined under section 2(5) of the code as ‘any court which is situated outside India and not established under or continued by the authority of the Central Government.’
Object of Res Subjudice
The object of this section is to prevent the courts of concurrent jurisdiction from simultaneously adjudicating upon two parallel litigations in respect of same cause of action, subject matter and relief in order to avoid the possibility of two contradictory and separate decisions as well as multiplicity of verdicts in the same case and also avoid conflict of decisions i.e. matters which are ‘directly and substantially in issue in a previously instituted suit’.
Essential Elements of Res Subjudice:
The essential elements required for the application of this section are as follows:
1. Two suits – previously instituted and other subsequently instituted. Matter in the subsequent suit is to be directly and substantially in issue in the previous suit. “Matter in issue” means the facts on which the right is claimed and the law applicable to the determination of that issue, the issue may be of fact, law, or of both law and fact. ‘Matter in issue’ can be classified as –
- Matter directly and substantially in issue – which means immediately and essentially.
- Matter collaterally and incidentally in issue – this term has been used in contradistinction to directly and essentially.
2. Suits to be between same parties or their representatives, a ‘party’ is a person whose name appears on the record at the time of decision.
3. The previously instituted suit must be pending in the same court in which the new or subsequent suit is brought and where the final decision has not arrived.
The court should be competent to grant relief in the subsequent suit. The former suit must be pending before a court which is competent to try the case. If the former suit is pending before a court which is incompetent no legal effects flow from it.
4. Parties must be litigating in the same title – “same title” means same capacity. Litigating in the same title means that the demand should be of the same quality in the subsequent suit as was in the previous suit.
Section 10 is mandatory in nature and no discretion on behalf of the court is required to proceed with under this section as soon as the above-mentioned conditions are fulfilled. In Aspi Jal vs. Khushroo Rustom it was laid down that – mere common grounds between the two suits are insufficient to attract section 10. An order staying proceedings in the subsequent suit can be made at any stage as laid down in Life Pharmaceuticals (P) Ltd. vs. Bengal Medical Hall.
Applicability of section 10 is ensured when the decision in a previously instituted suit would operate as res judicata in the subsequent suit, and in such a case the subsequent suit must be stayed. Here, res judicata means the doctrine of res judicata embodied in section 11 of the code i.e. no court shall try any suit or issue in which the matter directly and substantially in issue in a former suit (suit decided prior to the suit in question) between the same parties litigating under the same title in a competent court to try such subsequent suit has been heard and finally decided by such court. Hence, res subjudice bars the trial of a suit which is pending for decision in a previously instituted suit.
A civil court has inherent power under section 151 to stay a suit to achieve the ends of justice even in cases where the provision of section 10 does not apply.
Power to Pass Interim Orders
An order of stay of suit does not take away the right of the court to pass any interim orders, it is open for the courts to pass interim orders such as temporary injunction, amendment of plaint or written statement, attachment before judgment and the like.
The rule of procedure is quite simple and if the parties want to waive their right under section 10 they can do so by expressly asking the court to proceed with the subsequent suit but they cannot however, challenge the validity of the subsequent proceedings of the suit.
Consolidation of Suits
The main purpose of this doctrine is to avoid any conflicting and contradictory decisions, hence the court has this power in appropriate cases to pass an order for the consolidation of both the suits between same parties and for same title.
The doctrine of res-subjudice is an important one and essential in order to reduce the burden from the courts and also to safeguard the interest of the litigating parties by avoiding double litigation and repetition of the proceedings. It also avoids conflicting and contradicting decisions by the courts and to ensure minimum utilization of the court resources and saves the time of the courts. It also keeps a check on the misuse of the rights in order to get double benefits by instituting same cases twice.
C.K. Takwani, Civil Procedure with Limitation Act, (EBC, 8th Edition)
This article has been written by Priyanshi Gupta, LLM student at Nirma University.