CONCEPT OF RES SUB JUDICE UNDER SECTION 10 OF CPC- 1908

Introduction
Section-10 deals with the doctrine of res sub-judice and section-11 deals with the doctrine of
res-judicata. Section-10 provides the rule with regard to stay of suits where things are under
consideration or pending adjudication by a court. On the other hand section-11 provides the
rule relates to a matter already adjudicated. It bars the trial of a suit or an issue in which the
matter directly and substantially in issue has been adjudicated upon in a former suit.
Meaning
Subjudice in Latin means ‘under judgment’. It denotes that a matter or case is being considered
by court or judge when two or more cases are filed between the same parties on the same
subject matter, the competent court has power to stay proceeding. However the doctrine of res-
subjudice means stay of suit.

SECTION 10
‘’ 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 constituted by the Central Government
and having like jurisdiction, or before the Supreme Court.’’

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.
Indian Bank v. Maharashtra State Coop. Marketing Federation, (1998) 5 SCC 69 ,
The SC held that this 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, etc.

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. The section intends to protect a person
from multiplicity of proceedings and to avoid a conflict of decisions. It also aims to avert
inconvenience to the parties and gives effect to the rule of res judicata.
It is to be remembered that the section does not bar the institution of a suit, but only bars a
trial, if certain condition are fulfilled. The subsequent suit, therefore, can’t be dismissed by a
court, but is required to be stayed.

Conditions
For the application of section 10, the following condition must be satisfied:
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 suit 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 beyond the limits of India
established or continued by the Central Government or before the Supreme Court.
5. The court in which the previous suit in 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.

Pukhraj D. Jain v. G. Gopalakrishna (2004) 7 SCC 251

Section 10, however, 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.

CONTRAVENTION: Effect
A decree passed in contravention of Section 10 is not a nullity, and therefore be disregarded in
execution proceedings. (Pukhraj D. Jain v. G. Gopalakrishna ). Thus, it lays down a rule of
procedure, pure and simple, which can be waived by a party. Hence, if the parties waive their
right and expressly ask the court to proceed with the subsequent suit, they can’t afterwards
challenge the validity of the subsequent proceedings.

Dess Piston Ltd v. State Bank of India 1991

Held: when a matter is before a competent Civil court, the National Commission will not
entertain a petition in respect of identical subject matter under Consumer Protection Act.

DIFFERENCE BETWEEN STAY ORDER AND INJUNCTION ORDER

Stay Order
(Order 21, Rule 26; Order 41, Rule 5 the CPC, 1908)

A stay order means to temporarily suspend the execution of a court judgment or order. A stay is a
suspension of a case or a suspension of a particular proceeding within a case.
Stay order refers to stoppage, arrest or suspension of judicial proceedings. An order of stay is
primarily passed against the execution of a decree. It is made against the execution of a decree to
enables the judgment-debtor to appeal to an appellate court against such a decree. Such an order
excludes commencement of any proceeding for execution of the said decree.

Stay order may also be made against a sale (Order 21, Rule 59 ), in a suit against a corporation
(Order 30) ,in a suit involving a minor (Order 32) , inter-pleader suits (Order 35) , summary suits
(Order 37) in case of reference to a High Court (Order 46) . The proceedings of stay order is
available to the Civil Courts as well as to the Supreme Court and the High Courts.

Injunction Order

(Order 39 of CPC 1908)

An injunction is a remedy in the form of a court order that compels a party to do or refrain from
certain acts. A party that fails to obey an injunction faces criminal or civil penalties, including
possible budgetary sanctions and even imprisonment. They can also be charged with contempt of
the court. Injections are of different types;
1.Temporary injections which is granted during the pendency of the suit based on various factors
like preservation of status quo, balance of convenience, a prima facie case, irreparable injury, etc.
2.Permanent injections permanently prohibits or mandates a person to do certain actions
3.Preventive is the one that restrain actions
4. Mandatory is the one that compel actions.
5.Ad-interim is the one granted during pendency of application and operative till its disposal.
6. Interim is the ones that are granted at disposal of application and operative till disposal of the
suit.

Main Differences between injunction order and stay order are as follows:

Proceedings taken in violation of a stay order are void where those against an injunction are not
null and void but subject to punishment.
Injection operates as soon as it is issued but a stay order come to exist only when it is
communicated to the court to which it is issued .
An order of stay of proceedings is available to the Civil Courts as well as to the Supreme Court and
the High Courts
An order of stay of proceedings may also be made against a sale, in a suit against a corporation, in
a suit involving a minor , interpleader suits , summary suits , in case of reference to a High Court
An order of stay operates against a court while an injunction is applicable against a person.

GUNDAJI SATWAJI SHINDE V. RAMCHANDRA BHIKAJI JOSHI

AIR 1979 SC

FACTS:-

By this appeal, appellant challenged the judgment of the High Court confirming the jurisdiction of
the Civil Court to decide whether the person is an agriculturist or not, as held by the trial court.
The appellant sued for the specific performance of the contract for sale of the agricultural land
governed under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948
(hereinafter referred as the Tenancy act) in the Civil Court. The defendant resisted the suit
contending that the plaintiff being not an agriculturist and thus, barred from purchasing the land
under S. 63 of the Tenancy Act. In return, appellant contended S. 63 as inoperative on the basis of
the S. 70(a) read with S. 85 and S. 85A of the Tenancy Act, according to which the issue would have
to be referred to the Mamlatdar for decision and the Civil Court would have no jurisdiction to
decide the suit. The trial court dismissed the suit on the ground that Civil Court had jurisdiction to
decide incidental or subsidiary issue arising out of the main suit. The High Court confirmed the
trial court order. Thus appeal was raised as to decide above incidental issue.

ISSUE:-

Whether the Civil Court has jurisdiction to decide the issues required to be settled by the
Mamlatdar (competent authority) under S.70 of the Tenancy Act?

JUDGMENT:-

The focal point, according to Law Offices of James C. Wing, Jr. is that the controversy necessitates
examining the relevant provisions of the Tenancy Act. In pursuant to this, Hon’ble Court observed
S. 85 as bar on jurisdiction of the Civil Courts to decide certain issues and S. 85A provides for
reference of issues required to be decided by to the competent authority set up under the Tenancy
Act. Legislature under S. 70 (a) constituted the Mamlatdar with exclusive jurisdiction to decide
whether a person is an agriculturist or not. Thus, therefore, the Civil Court under S. 85A will have
to frame the issue and refer it to the Mamlatdar and on being answered back, disposed of the suit
in accordance with the decision recorded by the Mamlatdar on the relevant issue.

On combined reading of Ss. 70, 85 and 85A the legislative view appears to be that when civil suit
properly brought before the Civil Court which is required to be settled, decided or dealt with by a
competent authority under the Tenancy Act, the Civil Court is statutorily required to stay the suit
and refer such issues to such competent authority viz. Mamlatdar for determination. Further, the
decision of the competent authority would be binding upon the Civil Court to dispose of the suit
accordingly.

Reliance was placed in the case Dhondi Tukaram Mali v. Dadoo Piraji Adgale [55 Bom. LR 663]
and Trimbak Sopana Girme v. Gangaram Mhataraba Yadav [55 Bom. LR 56] in support of the
 above observation.Thus, as to the question of jurisdiction of court to decide subsidiary issue
whether the plaintiff is an agriculturist or not, is reserved only by the Mamlatdar (competent
authority) under S. 70 of the Tenancy Act. Hereby, the appeal was allowed setting aside the order
of the High Court affirming the decree of Civil Court.

HELD:-

It was held that the exclusive jurisdiction to decide the subsidiary issue is hold by the Mamlatdar
(competent authority) and the Civil Court will be expressly barred to decide such issues.

INDIAN BANK VS. MAHARASHTRA STATE CO-OPERATIVE MARKETING

FEDERATION LTD., 1998

CASE BRIEF

Court Before the Supreme Court of India

Bench Justice S.C. Agrawal and Justice G.T. Nanavati

Author of the judgement Justice G.T. Nanavati

Decided On 5 May, 1998

Advocates for the appellant Sameer Parekh, Ms. Bina Madhavan, P.H. Parekh

Advocates for the respondent D.M. Nargolkar

Author of the brief Aditi Mozika

Keywords Res Sub Judice, Civil Procedure

Brief Facts and procedural history:

The Respondent Federation opened in the Appellant Bank an Irrevocable Letter of Credit for a sum of Rs.
3,78,90,000/- in favor of M/s. Shankar Rice Mills on 5 June 1989. This was done on leave to the Federation to
defend the suit conditionally upon the Federation depositing Rs. 4 crores in the Court. The summons for judgment
was disposed of and the Notice of Motion was dismissed by the single bench. Aggrieved by the Order of the
Learned Single Judge, the Federation preferred Appeals No. 953 and 954 of 1994 before the Division Bench of the
High Court.

According to the division bench the word ‘trial’ in section 10 has not been used in a narrow sense and would mean
the entire proceedings after the defendant enters his appearance, held that section 10 of the Code applies to a
summary suit also. It also held that the summary suit filed by the Bank being a subsequently instituted suit was
required to be stayed.
Issue before the Honorable Supreme Court:
Whether the bar to proceed with the trial of subsequently instituted suit contained in section 10 of the Code is
applicable to a summary suit filed under Order 37 of the Code?

Held:
1. The object of the prohibition contained in Section 10 is to prevent the courts of concurrent jurisdiction from
simultaneously trying two parallel suits and also to avoid inconsistent findings on the matters in issue.
2. The course of action which the court has to follow according to section 10 is not to proceed with the ‘trial’ of
the suit. This does not mean that it cannot deal with the subsequent suit or for any other purpose.
3. The provision contained in section 10 is a general provision applicable to all categories of cases, while those
contained in Order 37 apply to certain classes of suits. One provides a bar against proceedings with the trial of
a suit, while the other provides for granting of quick relief. Both these provisions have to be interpreted
harmoniously so that the objects of both are not frustrated.
4. In suits where summary procedure has been adopted, the defendant has to file an appearance within 10 days
of the service of summons and apply for leave to defend the suit. If the defendant does not enter his appearance
or fails to obtain leave, the allegations in the plaint are deemed to be admitted and straightaway a decree can
be passed in favour of the plaintiff. It is only if and after the defendant obtains leave that the stage of
determination of the matters in issue will arise. The trial would really begin only after leave is granted to the
defendant. This is the scheme of summary procedure as provided by Order 37 of the Code.
5. The word ‘trial’ in section 10, in the context of a summary suit, cannot be interpreted to mean the entire
proceedings starting with institution of the suit by lodging a plaint. In a summary suit the ‘trial’ really begins
after the Court or the Judge grants leave to the defendant to contest the suit. Therefore, the Court or the Judge
dealing with the summary suit can proceed up to the stage of hearing the summons for judgment and passing
the judgment in favor of the plaintiff if (a) the defendant has not applied for leave to defend or if such
application has been made and refused or if (b) the defendant who is permitted to defend fails to comply with
the conditions on which leave to defend is granted.

IFTIKHAR AHMED V. SYED MEHERBAN ALI

There was a dispute as to title to some land. The appellant sought to challenge the decision of
the High Court, which was to the effect that the respondents also had some title to the land in
question. Initially, the dispute between the parties was referred to an arbitrator by the Civil
Judge. The holding of the arbitrator was that that the respondents had no title and sole title
belonged to the appellant. The decision of the arbitrator was based upon a judgment of the
High Court in an earlier judgement, wherein both the present appellant and respondents were
co-plaintiffs in a suit against another person, again in respect of title to the land. Such a
decision of the High Court was considered by the arbitrator to operate as res judicata, and
hence held in favour of the appellants.

The respondents then filed objections against the decision of the arbitrator with the Civil
Judge, Meerut, and the Civil Judge said that the decision of the High Court did not operate as
res judicata and since the decision of the arbitrator, dependent as it was on the decision of the
High Court as res judicata, was manifestly wrong and vitiated by error of law. An order for fresh
arbitration was passed.
The appellants then filed objections before the Civil Judge who did not find anything
manifestly wrong on the face of the record and confirmed the decision of the arbitrator. The
appellants preferred an appeal to the District Court, which allowed it, opining that the decision
of the High Court did constitute res judicata and hence ordered a fresh arbitration. The
respondents then filed a revision petition in the High Court, and the High Court confirmed the
decision of the Civil Judge, reversing the decision of the District Court.

The matter then came up before the Supreme Court a Special Leave Petition. The Supreme
Court considered the matter, and considered the question of whether the respondents, who
had had failed previously to establish title to the properties, could agitate the matter again. In
doing so, the Court also explained the concept of res judicata between defendants and
reiterated the established rule that in order that such a principle may be invoked, the following
conditions must be met:

1) there was a conflict of interest between co-defendants;

(2) that it was necessary to decide the conflict in order to give the relief which the plaintiff
claimed in the suit;

(3) and that the court actually decided the question.

The Court then went on to say that if all these conditions were satisfied mutatis mutandis, there
was no reason why the previous decision should not operate as res judicata between co-
plaintiffs as well. On this reasoning, the Court agreed with the holding of the earlier arbitrator
and contention of the appellants that the earlier decision of the High Court did operate as res
judicata, since all the three conditions had been met mutatis mutandis between the co-
plaintiffs in the earlier case, and accordingly allowed the appeal.

It is also important to mention that the parties in the subsequent suit, though they may be the
same, must additionally be litigating in the same capacity as they were in the former suit.
STATE OF U.P. VS. NAWAB HUSSAIN
SIR CHUNILAL V. MEHTA AND SONS, LTD. VS. THE CENTURY SPINNING
AND MANUFACTURING CO., LTD.
AIR 1962 SC

FACTS: –

Chunilal Mehta & Co., Bombay was appointed Managing Agents of the respondent company for a term of 21
years by an agreement. On April 23, 1951, the Board of Directors of the Company terminated the
agreement of 1933 and passed a resolution removing the appellant as Managing Agents. The appellant
thereupon filed a suit on the original side of the Bombay High Court claiming Rs. 50 lakhs by way of
damages for wrongful termination of the agreement. Eventually with the permission of the Court it
amended the plaint and claimed instead Rs. 28,26,804/-. The company admitted before the Court that the
termination of the appellants’ employment was wrongful and so the only question which the learned Judge
before whom the matter went had to decide was the quantum of damages to which the appellant was
entitled. This question depended upon the construction to be placed upon clause 14 of the Managing
Agency agreement. The claim in appeal before the High Court was for about 26 lakhs of rupees. Being
aggrieved by the decision of the High Court, the appellant applied for a certificate under Art. 133(1)(a) of
the Constitution. The judgment of the High Court in appeal was in affirmance of the judgment of the learned
single Judge dismissing the appellant’s suit for damages and therefore, it was necessary for the appellant to
establish that a substantial question of law was involved in the appeal. The Learned Judge refused to certify
the matter fit for the consideration by the Apex Court. Therefore, present Special leave Petition.

ISSUE: – What is Substantial Question of Law?

JUDGMENT: –

The proper test for determining whether a question of law raised in the case is substantial would be
whether it is of general public importance or whether it directly and substantially affects the rights of the
parties and if so whether it is either an open question in the sense that it is not finally settled by this Court
or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of
alternative views. If the question is settled by the highest Court or the general principles to be applied in
determining the question are well settled and there is a mere question of applying those principles or that
the plea raised is palpably absurd the question would not be a substantial question of law.

Applying these tests it would be clear that the question involved in this appeal, that is, the construction of
the Managing Agency agreement is not only one of law but also it is neither simple nor free from doubt. In
the circumstances, the High Court was in error in refusing to grant the appellant a certificate that the
appeal involves a substantial question of law.

HELD: –

Court held that construction of the terms of the agreement with the purpose of determining the quantum of
compensation is a substantial question of law.