Section 10 of CrPC : Res Sub Judice |
“In the Indian judicial system, when a person gets a legal right, they can go to the court and enforce his right under the judicial process. But many times, cases are filed in different courts related to the same dispute, which increases the possibility of contradictory decisions. To streamline the judicial process, Section 10 of the Code of Civil Procedure, 1908 (CPC) includes the principle of Res Sub Judice, also known as ‘Stay of Suit’. This provision helps in saving the time of the court, consistency in decisions, and preventing unnecessary repetition of cases.
In this article of JudiciaryExam.com, we will understand in depth the principle of ‘Pending Suit’ (Res Sub Judice) in the Indian judicial system – analysing its meaning, legal provisions, judicial approach and practical effects.
Original text of Section 10 of the CPC
10. 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].
Explanation. — The pendency of a suit in a foreign Court does not preclude the Courts
in India from trying a suit founded on the same cause of action.
According to section 10 of CPC
A reading of section 10 makes it clear that if a suit has been tried earlier in a court, then the Court shall not be allowed to try the suit. If a suit is sub judice, then subsequently a suit is instituted in a court between the same parties or by persons entitled from such parties for the subject matter which is directly and substantially in dispute in the first suit, then the later court shall not proceed further in that suit i.e. shall not try it.
Section 10 only prohibits the trial of a suit and does not prohibit the institution of a subsequent suit. Thus, it is a rule of procedure which can be waived by a party. Therefore, if the parties waive their right and expressly ask the court to proceed further in the trial of the subsequent suit, they cannot challenge the validity of the proceedings of the suit.
Objectives of Section 10 of CPC Sub judice
- Prevention of conflicting decisions.
- Prevention of multiplicity of suits.
The provision made in Section 10 is not that trial of a second suit should be done. Not only is the institution of the first suit stayed but the trial of the second suit is stayed. The trial of the second suit is stayed, not dismissed. That is, Section 10 only stays the trial of the second suit. (Espi Jal and others vs Khushru Rustam Dadyburjor (2013)
The court said that Section 10 CPC is mandatory and prevents the courts from trying a subsequent suit if the earlier suit is pending. The purpose of Section 10 CPC is to prevent contradictory judgements and multiplicity of proceedings.
Essential conditions for the enforcement of Section 10
The essential condition for the enforcement of Section 10 is that
Two suits: previous and subsequent
Section 10 of CPC: For the enforcement of pending suit, it is necessary that there should be two suits. First, one case should be pending before a competent court. Again, another suit on the same subject matter should be pending after the earlier suit. 1. The term ‘suit’ under section 10 generally means a civil proceeding initiated by the presentation of a plaint.
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Example – There is a property dispute between “Rajesh” and “Ajay”.
First suit: Rajesh Kumar has already instituted a suit relating to this dispute before the District Court, which is still pending.
Second suit: Later, Ajay filed a fresh suit on the same issue involving the same property.
In this situation, section 10 of the CPC will apply, because:
The first case is already pending in a competent court. A fresh suit has been instituted on the same issue. The fresh suit will remain in abeyance till the judgment of the first suit is pronounced, so as to maintain uniformity in judicial process and to avoid conflicting judgments.
The subject matter is apparently and substantially the same
The earlier suit and the subsequent suit are the same The issues in the suit should be identical in nature and in substance. That is, the subjects in dispute should be the same. If the subjects in dispute are not identical, the provisions of section 10 will not apply.
“Identical in nature and in substance” means that the entire subject matter in both the proceedings is the same. The basic test for the applicability of section 10 is whether the judgment in the earlier suit operates as res judicata in the later suit. (National Institute of Mental Health and Neurosciences v. V.C. Parameshwar, AIR 2005 SC 242 (244).)
Like a suit is a case in which the plaintiff is a plaintiff.
One suit relates to the validity of termination of tenancy of the tenant and liability to pay arrears of rent and the other suit is for declaration of title, in such circumstances, the two suits are not substantially similar.
Between the same parties
For the doctrine of Res sub judice to apply, it is necessary that the earlier suit and the subsequent suit are brought between the same parties or between the parties deriving title from them. If the parties are different, then section 10 CPC will not apply.
Example:
There is a property dispute going on between “Lalua Singh” and “Ballu Gupta”.
First suit: Lalua Singh has already instituted a suit in the District Court regarding this property dispute, which is sub judice.
Second suit: Later, Dabboo Gupta, who is the heir to the property and has inherited the title from Ballu Gupta, has instituted a fresh suit on the same subject matter.
In this situation, section 10 of the CPC will apply because:
Dabbu Gupta has acquired title from Ballu Gupta, thereby linking him with the original party. A new suit on the same subject matter has been instituted after the earlier suit.
But, if the new suit was instituted by entirely different persons, section 10 would not apply.
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Pending suit
The principle of pendente res contained in section 10 of the CPC requires that the earlier suit is pending before any of the following courts:
- The same court in which the subsequent suit is brought.
- Any other court in India having jurisdiction to grant the same relief.
- A court established or maintained by the central government outside the territory of India having the same jurisdiction.
- Before the Supreme Court.
Competent Courts
For the principle of res judicata to be applicable, it is necessary that both the suits i.e., the earlier and the subsequent suits should be instituted in a competent court. Competence means the jurisdiction of the court. The court should be competent to grant relief in both the cases.
Important judgements on Section 10 in Respective Suits
“National Institute of Mental Health and Neuro Sciences v. C. Parameswaran 2004 SC”
The Court held that the purpose of Section 10 is to prevent a court of concurrent jurisdiction from trying two parallel suits in respect of the same issues between the same parties. The fundamental test for attracting Section 10 is whether the final judgment passed in the earlier proceedings would be effective as res judicata in the subsequent suit.
Indian Bank vs Maharashtra State Co-operative Marketing Federation Ltd. 1998
The court held that the provisions of section 10 of the Code of Civil Procedure will not apply to a subsequent summary suit instituted under Order 37 of the Code of Civil Procedure, because in a summary suit the trial begins with the court allowing the defendant to defend and not with the presentation of the plaint.
“Manoharlal Chopra vs Raibahadur Raoraja Seth Hiralal 1962 SC”
The provisions of section 10 are mandatory, the court cannot exercise its discretion in violation of section 10.
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Exceptions to Section 10 CPC : Res Sub Judice
1. Suit pending in foreign court –
If the suit has been instituted in a foreign court and its trial is going on, then it cannot be called a pre-initiated suit. Therefore, a new suit can be instituted in any court in India on the same cause of action.
2. Summary suit –
According to Order 37 of the CPC, the trial in a summary suit begins when the defendant opposes the suit. Therefore, the proceedings before the court allows the opposition to the suit will not come up. Due to which Section 10 will not come into force.
3.Interim order –
The rule of pending justice does not affect the jurisdiction of the court to pass interim orders such as stay, injunction, attachment before judgment, appointment of receiver etc. In fact, it will be to help the judicial process that the interlocutory matters are settled in the middle of the suit itself, otherwise there will be multiplication of suits.
Section 10 CPC does not apply
One suit is for declaration of title and injunction and other is for partition and separate possession. issues involved in both the suits are completely different, section 10 CPC will not be applied
FAQs:
Q: When does section 10 come into operation?
Answer – Section 10 comes into operation after settlement of issues in subsequent suit i.e. after composition.
Q: Are the provisions of section 10 mandatory?
Answer – Yes.
Q: What is the remedy available against the order of section 10?
Answer – Revision petition.
