Res Sub-Judice u/s 10 of CPC – Meaning and Essentials

Res Sub-Judice under Section 10 of CPC refers to the rule that prohibits courts from trying a subsequent suit when the matter in issue is already directly and substantially pending between the same parties in another competent court. This doctrine aims to prevent multiplicity of proceedings, avoid inconsistent judgments, and reduce the burden on courts. It does not bar the filing of a subsequent suit but merely stays its trial until the earlier case is decided, ensuring judicial discipline and fairness in adjudication.

1. Res Sub-Judice
2. Essentials of Res Sub-Judice
3. Non-Applicability of Section 10
4. Whether Stay of Suit is Possible Under Inherent Powers of the Court

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1. Res Sub-Judice

Section 10 provides for the rule of res sub-judice i.e. stay of the suit. The primary object of this section is to prevent Courts of concurrent jurisdiction from entertaining and adjudicating on parallel litigation filed for the same cause of action, for the same subject matter and for the same relief¹. Section 10 does not bar the institution of the subsequent suit it only bars the trial. The use of negative expression in Section 10, i.e. “no court shall proceed with the trial of any suit” makes the provision mandatory and the Court in which the subsequent suit has been filed is prohibited from proceeding with the trial of that suit if the conditions laid down in Section 10 of the Code are satisfied.

Section 10, inter alia mandates that no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue between the parties, 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. It has been incorporated to avoid multiplicity of proceedings on issues which are directly and substantially in issue in the previously filed suit². Thus the basic purpose of Section 10 of the Code of Civil Procedure is to prevent the courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and same relief. The aim of this Section to avoid the possibility of contradictory verdicts by two Courts in respect of the same relief and to protect the defendant from multiplicity of proceedings³. However, this Rule of procedure is held not affecting the jurisdiction of the Court to entertain and deal with the latter suit and does not create a bar to the institution of the suit. It only mandates the Courts to not proceed with the “trial” of the suit but that does not mean that the subsequent suit cannot be instituted or that the Courts cannot deal with the subsequent suit any more or for any other purpose⁴.

Section 10 of the CPC is a somewhat drastic provision, inasmuch as it brings the trial in the later suit to a complete halt. It eviscerates, therefore, in a manner of speaking, the right of the litigant to expeditious trial. The corridors of the court not being the most habitable of places, where one would choose to linger long, Section 10 is required to be construed strictly.⁵.

A mere presentation of the memo of appeal before the High Court without the same being admitted, would not attract Section 10 CPC⁶.

The objective behind Section 10 in CPC can be deduced as under:

(i) To prevent parallel litigation between the same parties on the same issue/subject matter.

(ii) To reduce the burden on the courts as also to prevent wastage of time of the Courts.

(iii) To avoid contradictory decisions on the same issue/subject matter.

(iv) To protect the rights of other party⁷.

The words “shall not proceed in any suit” in Section 10 CPC do not apply to the simultaneous hearing of a later and an earlier suit, after consolidation of the two, if the matter in issue in both is directly and substantially the same. The power to consolidate the suits is the inherent power of the Court. Section 10 was not intended to take away the inherent power of the Court to consolidate different suit between the parties in which the matter in issue is substantially the same, in the interest of justice and in appropriate cases. There is no conflict in the principle and purpose underlying Section 10 and the inherent power of the Court to consolidate different suits in appropriate cases. Both are meant to prevent multiplicity of litigation between the same parties. Any interpretation of Section 10 which takes away the power of the Court to consolidate suits would hinder the policy and purpose of Section 10 itself⁸. Needless to say, when both the suits are jointly tried, issues are accordingly framed and common judgments are delivered, then there is no possibility of conflicting judgment and both parties will not be prejudiced in any manner⁹.

For the application of Section 10, what is required to be considered is as to whether the first suit is instituted in the Court of competent jurisdiction to grant the relief claimed in the subsequently instituted suit^10-11. It is required that the Court in which the previous suit is pending is competent to grant the relief claimed¹². Therefore, Allahabad High Court in a matter where one relief was prayed under Specific Relief Act and another under Provincial Small Causes Courts Act, 1887, both of which are entirely different jurisdiction refused to stay the proceedings¹³.

If all the above conditions are fulfilled, then the Court should stay the subsequent suit pending before it. Even if all the above conditions are not fulfilled the Court can exercise its inherent power to stay the trial of a suit in appropriate cases.

Mere filing of an application under section 10 CPC does not in any manner put an embargo on the power of the court to examine the merits of the matter. The section enacts merely a rule of procedure and a decree passed in contravention thereof is not a nullity¹⁴. Though section 10 is said to be mandatory, however, if the Court finds the same to have been invoked with ulterior motives, the Court is entitled to see through the game and grant the relief and dismiss the application¹⁵. Hence, Section 10 cannot be applied pedantically, in all situations, even when application thereof would result in miscarriage of justice¹⁶.

The Hon’ble Supreme Court in a recent judgment has held that it cannot be gainsaid that an application under section 10, by its very nature requires immediate consideration, before any other step in the suit. It however cautioned that the trial court should have simultaneously taken up the application under section 10 of CPC, particularly when the trial court considered the step of filing the written statement to be of importance in view of time limit and consequences stated in the statute¹⁷. It is pertinent to note that the question whether section 10 is applicable essentially rests on the pleadings of the parties in both the suits. In order to adjudicate the application under section 10, the Court ought to wait till the written statement was filed and issues are framed.¹⁸

The fundamental test for the applicability of rule of Res Sub Judice is whether a decision in the previously instituted suit would operate as res judicata in a subsequent suit¹⁹. The test for applicability of Section 10 of the Code is whether on a final decision being reached in the previously instituted suit, such decision would operate as res judicata in the subsequent suit²⁰. The concept of res judicata is discussed in the later part of this Chapter.

It is the later suit which is to be stayed and not the former suit. Therefore, date of institution of the suit is important to determine which of the two is subsequent and liable to be stayed²¹.

One major condition which must be fulfilled is that the suit, the trial of which is sought to be stayed in terms of Section 10 of CPC must be in respect of the entire cause of action which is the subject matter of the suit instituted prior in time, coupled with the fact that subsequently instituted suit must also have the jurisdiction to grant the remedy/relief which has been claimed in the suit instituted prior in time. Where the two suits are pending before the courts of two separate jurisdiction relating to two separate cause of actions, where the subject matter also relates to two separate type of properties merely because one issue is common and would have the material bearing would not attract the provisions of Section 10 of the C.P.C.²² There are certain conditions which are required to be fulfilled before a suit can be stayed under section 10.

2. Essentials of Res Sub-Judice

1. There must be two pending suits
2. These two suits should be pending in the courts in India or Courts established under the authority of Central Government; or in any other Court in India (whether superior or inferior or coordinate); or in any Court beyond limits of India established or continued by Central Government; or before Supreme Court, and such Court is a Court of jurisdiction competent to grant the relief claimed in the subsequent suit²³.
3. The parties to the suits must be the same or they must be litigating through their representatives or litigating under the same title;
4. The matter in issue in the previous suit is directly and substantially in issue in the subsequent suit.

2.1 There Must Be Two Pending Suits

For the application of this section there must be two suits, one which is prior in time than the other and both must be pending. If any of the suit is decided, section 10 will not have application and instead it is section 11 which may apply. It is the latter suit which is required to be stayed therefore to determine which of the two suit is later in time, it is the date of institution of suit which is of considerable importance under Section 10. The subsequent Court, on realizing that all the essentials of this section exist, will stay the suit pending in its court. Thus, an application under Section 10 is to be filed before the subsequent Court stating the requirements of Section 10 are fulfilled and matter ought to be stayed. It is only the subsequent Court which can stay its own proceedings under Section 10.

If both the suits are filed in the same Court on the same day then the suit which bears the later suit number would be considered the subsequent suit. Where however, the suits are filed in the different courts but on the same day, evidence may be led to establish which of the two is a later suit.

2.2 The Two Suits Should Be in India or Courts Outside India Established Under the Authority of Central Government

The second requirement under section 10 for staying of suit is that both the suits must be pending in Courts in India i.e. to say if one of the suits is pending in a foreign court, section 10 will not have application.

The Court may however exercise its inherent power stay the proceeding even if the previous suit is instituted in a foreign Court. The Calcutta HC in a matter stayed the proceedings before an Indian Court, in exercise of its inherent power, when the previous suit was pending before Court in Bangladesh. The Court relied on explanation to section 10 which states that if the previously instituted suit is filed in a foreign court then Indian Courts are not precluded from proceeding with the subsequent suit²⁴.

2.3 The Parties Must Be Same in Both the Suits or Claiming Under Them or Litigating Under the Same Title

Parties in both the suits must be the same or claiming under them or litigating under the same title. “Same parties” as used in Section 10 of CPC means the parties between whom the matter substantially in issue has arisen and has to be decided. It has been held that complete identity of the parties is not required.

In order to sustain the plea of res-judice, it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim²⁵. It can be explained by an illustration.

Illustration 1

A files a suit against B filed in the year 2000. In the year 2003 C, as a legal heir of A, files a suit against B. C has not filed the subsequent suit in his personal capacity but as the legal heir of A. Therefore, the parties can be said to be the same.

Illustration 2

A is the landlord of the property and B is the tenant. A files an eviction petition against B, whilst the eviction petition is pending A sells this property to C. C institutes another eviction petition against B. The subsequent eviction petition filed by C is to be stayed as C is claiming through A.

2.4 The Matter in Issue in the Previous Suit Is Directly and Substantially in Issue in the Subsequent Suit

Section 10 would apply only if the matter in issue in both the suits is identical and it is between the same parties, or between the parties to whom they or any of them claim litigating under the same title²⁶. The matter ‘directly and substantially’ in issue means that the matter in dispute between both the parties in both the suits is the same. ‘Matter in issue’ is that matter on which the judgment would have a clear bearing that is to say if the judgment does not affect a particular issue then that is not the ‘matter in issue’. ‘Matter in issue’ may be an issue of fact; an issue of law or one of mixed fact and law. An issue of fact or an issue of mixed fact and law decided by a competent court is finally decided between the parties and cannot be reopened between them in another proceeding. The expression “the matter in issue” has reference to the entire subject matter in controversy between the parties²⁷. What is required is the matter in issue in the earlier suit, is also “directly and substantially”, an issue in the succeeding suit²⁸.

Further, the subject matter of the two suits must be identical. Identity of subject matter and identity of relief are, therefore, the inescapable sine qua non for Section 10 to apply. The mere fact that the outcome of one suit may have an effect on the outcome of the other is insufficient to invoke the said provision. It cannot be forgotten that what is required by Section 10, even as per the statute, is that the matter in issue in the suit later instituted is also directly and substantially in issue” in the earlier instituted suit. The Court cannot be unmindful of the use of the word “and” between “directly” and “substantially²⁹.

The word “directly and substantially in issue” are used in contradistinction to words “incidentally or collaterally in issue”³⁰. If the issue was “necessary” to be decided for adjudicating on the principal issue and was decided, it would be “directly and substantially in issue”. A collateral or incidental issue is one that is incidental to a direct and substantive issue³¹. In other words, when the question raised in the subsequent proceedings have no bearing on the findings made in the earlier proceedings, it cannot be said that the ‘matter in issue is directly and substantially’ the same between both the parties in the two suits.

There must be identity of ‘matter in issue’ between the parties in the suit. It is not sufficient if only one of the issues is common if identity of issue is substantial, it is enough to stay the subsequent suit and it is not necessary that the relief claimed should also be the same³².

In a matter where one proceeding was for grant of letters of administration while the other was for cancellation of the Will, the Court declined to grant stay under Section 10 of CPC. It was held that in suit filed for cancellation of ‘Will’, only question up for consideration is, “whether ‘Will’ was actually executed or it was a forged and fictitious”; while in Testamentary Suit, other issues are also involved³³ therefore section 10 shall have no application. Where the earlier suit is for injunction, but, the subsequent suit is for declaration, possession and for damage, the matter in issue is not directly and substantially not in issue in the previously instituted suit and that the decision of the earlier suit shall not operate as res judicata to the subsequent suit³⁴.

Illustration

A files eviction petition against B on the ground of non-payment of rent. B defends the petition stating that A is not the owner of the suit premises. For succeeding in the case pertaining to non-payment of rent, the issue of ownership is not relevant and the requirement of the case, amongst other things, is the existence of relationship of landlord-tenant. Thus, the issue of A’s ownership of the property is ‘collaterally and incidentally’ in issue and even though he may not be the owner, the factum of his being the landlord is a matter which is ‘directly and substantially’ in issue.

Where all the above essentials of Res Sub-Judice are fulfilled, it is the duty of the Court to stay the trial of a suit. The word ‘trial’ would mean the stage where issues are framed and evidence is led. Thus, when the pleadings are complete, issues have been framed, it is at that time the Court would decide as to the applicability of Section 10 in a suit. Overlapping is insufficient; what is required is identity³⁵.

In case the subsequent Court is of the opinion that Section 10 does not apply the trial would continue in both the suits. The settled principle of law is that it is not necessary that all the questions or issues that arise should be common to both actions, before a joint trial can be ordered. It will be sufficient if some of the issues are common and some of the evidence to be led in is also common, especially when the two actions arise out of the same transaction or series of transactions³⁶.

There can be no doubt to the legal proposition that whenever there is a fresh cause of action, a fresh suit would lie. However, the same has to be within the four corners of law. The plea of continuing cause of action cannot be stretched to an impermissible limit so as to permit multiple suits between the same parties relating to the same trademarks in different fora. This would constitute clear forum shopping³⁷.

3. Non-Applicability of Section 10

The language of Section 10 suggests that it is referable to a suit instituted in the civil Court and it cannot apply to proceedings of another nature instituted under any other statute³⁸. The petition filed before the Insolvency Court is not a lis between the parties but it is a lis in rem. Even though debt of the petitioner may have been mentioned in the said proceedings it does not become a lis between the respondent and the petitioner and the issues involved in the insolvency proceedings and the issue involved in the present proceedings are completely different and as such the embargo of Section 10 of CPC also does not apply³⁹. Probate proceedings are altogether different to proceedings before the Civil Court. Hence, pendency of a probate case is not a ground to stay the suit under Section 10 of CPC⁴⁰. Ideally, a probate petition and the partition suit between the same parties ought to be heard and adjudicated together, in order to avoid multiplicity of proceedings and conflicting findings/decisions. Considering both the proceedings were going on in different towns, for a long time, court dismissed the application under Section 10. It was held if the Trial Court decides that the partition suit is liable to be dismissed, then no further orders would be required to be passed. However, if the suit is decreed, it is directed that the said decree would come into effect after the decision of the probate petition⁴¹.

The Company Law Board is neither a Court nor the proceedings before it a suit. The Company Law Board does not have concurrent jurisdiction with that of the “Court’, under the CPC, rather their jurisdiction is exclusive of each other⁴². The Co-operative court adjudicating a dispute under Section 91 of Maharashtra Co-operative Societies Act, 1960 is not a court or civil court; similarly, Registrar of Co-operative Societies or his delegatee under Section 101 is also not a court or a civil court. Certainly, these two authorities are not ‘courts’ of concurrent jurisdiction. Therefore, Section 10 of the Civil Procedure Code would have no application⁴³. A Consumer Disputes Redressal Forum is not a Court but is a tribunal hence provisions of Section 10 shall not be attracted⁴⁴.

4. Whether Stay of Suit is Possible Under Inherent Powers of the Court

This section is not exhaustive and the Court can, in appropriate cases stay the subsequent suit under its inherent powers under Section 151 of CPC. The Court may also in appropriate cases consolidate both the suits together to be heard by one of the Courts provided the Court is competent to deal with the suit. Furthermore, it is clear that even if some issues in the subsequent suit overlap with a previously instituted suit, then also the Court is not bound to stay the trial of those particular issues in the subsequent suit because the language of Section 10 is very clear, as it deals with stay of suits and not stay of issues. But in a fit case, in peculiar facts and circumstances, the Court may exercise its inherent powers under Section 151 of the Code to stay the trial of such issues/suit so as to prevent multiplicity of proceedings⁴⁵.

It cannot also be overlooked that when the CPC has specific provisions to deal with specific situations such as Section 10 for stay of a subsequent suit, recourse to inherent powers under Section 151 of CPC are uncalled for ⁴⁶.

1. Indian Bank v. Maharashtra State Co-op Marketing Federation Limited AIR 1998 SC 1952; Aspi Jal v. Khushroo Rustom Dadyburjor AIR 2013 SC 1712
2. ACME Papers Ltd. v. Chintaman Developers Pvt. Ltd. 2024 INSC 248; Vandna Singh v. Addl. District Judge, Faizabad, (2021) ILR 12 All 717; Arumugam v. Neelavathy MANU/TN/6021/2020
3. Union of India, Ministry of Railways v. Rashmi Metaliks Limited. MANU/WB/1326/2022; Veeraju V. v. Govind Pandurang Sinai Batkully MANU/MH/4601/2023
4. Indian Bank v. Maharashtra State Cooperative Marketing Federation Ltd., (1998) 5 SCC 69; State of Meghalaya v. Union of India 2023 INSC 522; Som Nath Kalra v. Deepak Kalra 2023: DHC: 5767
5. Amita Vashisht v. Tarun Vedi, 2022: DHC: 3718
6. Rooprani Jain v. Deep Chand Jain MANU/UP/1721/2018
7. Vandna Singh v. Addl. District Judge, Faizabad (2021) ILR 12 All. 717
8. Kamla Kapoor v. Neelam Kapoor 2023 AHC 222252; Parigabai v. Dhondiram Bhimaji Borude MANU/MH/0671/2021
9. Saravanan v. Thirumurugan MANU/TN/4811/2021
10. Fakruddin Gulamhussein Vora v. Manilal Ishwarlal Thakkar 2008(0) AIJEL-HC 220416; Rahul Subhash Bothra v. Karjala Ashalata Naidu MANU/MH/0917/2020
11. Fakruddin Gulamhussein Vora v. Manilal Ishwarlal Thakkar 2008(0) AIJEL-HC 220416; Rahul Subhash Bothra v. Karjala Ashalata Naidu MANU/MH/0917/2020

12. Aspi Jal v. Khushroo Rustom Dadyburjor, (2013) 4 SCC 333; Mohammed Yunus v. Rahees Ahmed MANU/UP/0757/2018
13. Kasheri Nandan Agrawal v. Indu Bajpayee (2023) ILR 1 All 1316
14. Pukhraj D. Jain v. G. Gopalakrishna AIR 2004 SC 3504
15. Bristol-Myers Squibb Holdings Ireland Unlimited Company v. Natco Pharma 2020 DHC 465
16. Cadbury UK Limited v. Lotte India Corporation Ltd. 2019: DHC: 3716
17. Prakash Corporates v. Dee Vee Projects Limited 2022 INSC 180
18. A.M. Yousaf v. Kerala Naduvathul Mujahideen, Mujahid Centre MANU/KE/3470/2019
19. National Institute of Mental Health and Neuro Sciences v. C. Parmeshwara AIR 2005 SC 242
20. Aspi Jal v. Khushroo Rustom Dadyburjor AIR 2013 SC 1712; Rajendra Prasad v. Komal Devi MANU/UP/2758/2018
21. Standard Chartered Bank v. India Glycols Ltd. MANU/DE/1727/2014
22. Hansraj Yadav v. Addl. Commissioner, Ayodhya MANU/UP/3767/2022; Parminder Gujral v. Kiranjit Gujral, 2023: DHC: 5025
23. Laxmi Kant v. Ganga Devi MANU/UP/2138/2018
24. Dalgreen Agro Pvt. Ltd. v. Shaikh Asadur Rahaman MANU/WB/1386/2018
25. Saroja v. Chinnusamy (2007)8 SCC 329
26. Ashwani Khatri v. Neelam Khatri MANU/UP/3189/2018
27. Shyam Sel & Power Limited v. Bahubali Promoters Private Limited MANU/WB/0782/2019
28. Haroon Ebrahim v. Ajit Sukhija MANU/MH/3189/2017; Amrita Bazar Patrika Ltd. v. Jayanta Sengupta MANU/WB/1385/2009
29. Ruchika Pugliani v. Aasna Digin 2022: DHC: 4537
30. Madhusri Konar v. New Central Book Agency Pvt. Limited MANU/WB/1082/2022; Rajesh Narayan. v. Sneha Bhattacharya (Nee Chatterjee) AIR 2021 Cal 340
31. Sajjad Anashin Sayed v. Musa Dadabhai Ummer AIR 2000 SC 1238
32. Challapathi v. Swadeshi Sugar AIR 1983 Cal 119
33. Laxmi Kant v. Ganga Devi MANU/UP/2138/2018
34. Victor v. V.S. Sankar Raju MANU/TN/4280/2023
35. National Institute of Mental Health & Neuro Sciences (2005) 2 SCC 256; Aspi Jal v. Khushroo Rustom Dadyburjor (2013) 4 SCC 333; Hnunpuii v. Municipal Corporation of Delhi 2022: DHC: 3344
36. State Bank of India v. Ranjan Chemicals Ltd. 2006 INSC 690; Haripada Santra v. Madan Santra MANU/WB/0204/2022
37. Sun Pharma Laboratories Ltd. v. Hetero Healthcare Ltd. 2022: DHC: 1212
38. National Institute of Mental Health & Neuro Sciences v. C. Parameshwara (2005) 2 SCC 256; Ashwani Khatri v. Neelam Khatri MANU/UP/3189/2018; Raosaheb v. The Divisional Joint Registrar MANU/MH/1797/2022
39. Tata Capital Financial Services Ltd. v. Naveen Kachru proprietor of M/S. South Delhi Motorcycle 2022: DHC: 1238
40. Ravi Khanna v. Pankaj Khanna 2008 SCC OnLine Del 979 and Praveen Chandra v. Aparajita, MANU/DE/3549/2019
41. Praveer Chandra v. Aprajita 2019: DHC: 5622
42. Dr. Bais Surgical & Medical Institute Private Limited v. Dhananjay MANU/MH/2802/2021
43. Raj Systems Pvt. Ltd. v. Mahanagar Co-op. Bank Ltd. MANU/MH/0019/2020
44. Dilip Kundu v. Mira Devi Agarwal, MANU/WB/2081/2022; Ethiopian Airlines v. Ganesh Narain Saboo (2011) 8 SCC 539
45. H.QR.P. Limited v. M.T.I. Limited 2022: DHC: 5613
46. Dharam Dev v. Ashok Kumar 2021: DHC: 1743