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Stay "off" the Suit- Says Res Sub Judice

The common meaning of the word Sub Judice in Latin is "under a judge", which means that a particular case or matter is under trial or being considered by a judge or court. The sub judice rule is a rule of court, a statutory rule, a convention, and a practice that has developed in the interaction between media and public officials. As a result of its multiple forms, it has meant different things to different people at different times. The term sub judice literally means "under judicial consideration" or "before the court or judge for determination." The Common law principle of Sub Judice rule prohibits the publication of statements or opinions which may prejudice court proceedings. The sub judice rule is part of the law of contempt of court, specifically ex facie contempt, which refers to contemptuous acts committed outside the courtroom.

In England and Wales, Ireland, New Zealand, Australia, South Africa, Bangladesh, India, Pakistan, Canada, Sri Lanka, and many other countries in the world, it is generally considered inappropriate to comment publicly on cases sub judice, which can be an offence in itself, leading to contempt of court proceedings. This is particularly true in criminal cases, where publicly discussing cases sub judice may constitute interference with due process of justice dispensation.

Ubi jus ibi remedium is another basic fundamental principle of English Common law which means wherever there is a right, there is a remedy. As a general rule any aggrieved person can file a suit under the Code of Civil Procedure, and legally there is no bar if the Plaintiff has a sustainable cause of action and the suit is filed at the appropriate place, according to Code of Civil Procedure. However, there are few types of suits that are exclusively barred under the provisions of Code of Civil Procedure.

With a large number of pending cases in all courts in all jurisprudences, and the inevitable delay in adjudication, (even the Indian judiciary is overburdened and resultantly there is a long delay in timely disposal of the cases), even in Common Law and various other Systems of adjudication, the principle of Res Sub-Judice evolved. Thus, a doctrine developed to the effect that when two suits, arising out of the same issues, between the same parties or persons claiming under any of them on the same title, are brought before the courts, the suit filed prior in time shall continue, and the proceedings in the later suit were to be stayed. This doctrine of res sub judice has been captured and statutorily incorporated in Section 10 of the Code of Civil Procedure, 1908.

Section 10 deals with Doctrine of Res Sub-Judice. `Res' means a `matter or litigation' and `Sub-Judice' means `pending' (under judgment). Conjoining the two, it implies that the rule of Res Sub-Judice relates to a matter which is pending judicial trial. In other words, this rule applies where a matter is already pending before a court of competent jurisdiction, for the purpose of adjudication, then under Section 10 of CPC, subsequent (later) civil suit on the same issue between the same parties has to be stayed.

The phrase Res Sub judice is derived from a Latin maxim which means the "under judgment". The rule of sub judice is based on the public policy, which prohibits a party to the suit to file two parallel cases on the same subject matter and minimise the chances of having two contradictory judgments by the two courts. The purpose of the doctrine of Res Sub Judice is to prevent the multiplicity of the proceedings and to avoid two conflicting decisions. The doctrine bars the parallel trial of a suit, where the matter is pending adjudication in a former suit, but it does not restrict filling the subsequent suit. It is based upon the theory of "first past the post" which means that the one who approaches the court first gets to carry on his suit.

The object of the principle contained in Section 10 is to prevent courts of competent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations, in respect of the same cause of action, between the same parties, the same subject-matter and the same relief. The primary rule under stay of suit or rule of res sub-judice prevents the courts of concurrent jurisdiction from simultaneously adjudicating upon parallel litigation filed for the same cause of action, for the same matter and for the same relief. Thus, two suits between same parties, involving same subject?matter and same questions then the subsequent suit should be stayed.

The objective of law is to confine the parties to the suit to one litigation, thereby avoiding the unnecessary delay, wastage of time and resources, and further also minimising the possibility of two conflicting decisions with respect to the same cause of action. It also protects the litigants from unnecessary harassment, as was held in SPA Annamalay Chetty v. BA Thornlill AIR 1931 PC 263.

However, in order to fall within the parameters of section 10, it is essential that there must be two suits, not instituted simultaneously i.e. one should be instituted prior in time before a court of competent jurisdiction, and the other one should be subsequent in time. It is also a condition precedent that the two suits should be between the same parties, or between persons claiming under any of them under the same title, and the matter in issue of the two suits must be substantially the same. Whether the matter is directly or substantially the same in the previous suit or not, the primary test for the same is to imply as to whether a final decision in the previous suit would operate as res judicata in the subsequent suit.

Section 10 of the Code of Civil Procedure, 1908, reads as under:

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.

Therefore, the primary object of the doctrine of res sub judice is to prevent simultaneous proceedings on litigation of same issues in two courts and avoid litigation on the same cause of action on the basis of principles of res judicata. Technically speaking, section 10 applies to those litigations which come within the scope of section 9, read with section 26(2) of the Code. The doctrine of res sub judice only bars the `trial' of the subsequent suit. In cases where the subsequent suit does not depend on a trial, for example a summary suit, such suits are not affected by the rule of res sub judice and need not be stayed. It may also be noted that the institution of the subsequent suit i.e. mere filing of the plaint is not barred, only the trial proceedings are barred under the rule of res sub judice, as was held in Indian Bank v. Maharashtra State Co-operative Marketing Federation Ltd., AIR 1998 (SC) 1952. It was observed by the Apex Court that Section 10 of the Code prohibits the court from proceeding with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit provided other conditions mentioned in the section are also satisfied.

The term `trial' in Section 10 applies to all the proceedings in a civil suit. The language of section 10 suggests that it is referable to a suit instituted in the civil court, and cannot apply to the proceedings of any other nature, instituted under any other Statute, as was held in National Institute of Mental Health and Neuro-Sciences v. C. Parmeshwara, AIR 2005 SC 242. It was also held in Sennaji Kapuechand v. Pannaji Devichand, AIR 1922 Bom 276, that since only trial is stayed under section 10, any of the orders passed without there being a trial, such as attachment, injunction etc. are not affected by res sub judice. Therefore, the rule of res sub judice only bars the trial of the suit, and does not bar the courts from adjudicating upon interlocutory orders such as appointment of receiver, injunction or attachment. Thus, the subsequent suit, even when stayed under res sub judice, is not a dead suit as the court is empowered to adjudicate over interlocutory matters that don't require trial. It was held by the Supreme Court:

"8. The object underlying Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the -same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same issue by two Courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. 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 other nature instituted under any other statute. The object of Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res-judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject matter in both the suits is identical. The key words in Section 10 are "the matter in issue is directly and substantially in issue" in the previous instituted suit. The words "directly and substantially in issue" are used in contra-distinction to the words "incidentally or collaterally in issue". Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of subject matter in both the proceedings is identical."

(emphasis supplied by the writer)

The word `shall', as used in the body of section 10, makes it mandatory for the court to stay the subsequently instituted suit, if it finds out that the conditions enumerated in Section 10 are satisfied. The test for invoking the provisions of section 10 to seek a stay of the suit is that whether the outcome of the prior litigation shall bind the parties for the same issue in a subsequent litigation, or in other words whether the decision in the prior suit on the said issue shall operate as res judicata in the subsequent suit.

It may now be relevant to discuss briefly the concept of Res Judicata, as it is not only one of the basic principles of law, but also one of the conditions precedent for invoking the power of the court to stay the proceedings of the subsequent suit under section 10.

Res Judicata, also known as claim preclusion, is the term for "a matter already judged". It is based upon the Latin maxim "Res judicata pro veritate accipitur".

It means that once the issue before a court has already been decided by another court, of competent jurisdiction, between the same parties, the subsequent court shall not re-adjudicate the same, and the earlier judgement shall have a binding effect on both the parties. It refers to two concepts, both in civil law and common law legal systems: a case in which there has been a final judgment that is not subject to appeal; the legal doctrine meant to bar (or preclude) relitigating of the claim between the same parties. The doctrine of res judicata is a principle of preventing injustice to the parties of a case supposedly finished; but perhaps also (or mostly) a way of avoiding unnecessary waste of resources in the court system. Res judicata does not merely prevent future judgments from contradicting earlier ones, but also prevents litigants from multiplying judgments, and confusion over a lis that already stands decided. Thus, when a case has already been decided and the final judgement in that the matter is no longer subject to appeal, the doctrine of res judicata bars or precludes continued or further litigation of such matter between the same parties.

The doctrine of Res Judicata is based upon three legal Maxims:

•Nemo debet bis vexari pro eadem causa - no man should be tried twice for the same cause;

•Interest rei publicae ut sit finis litium - it is in the interest of the State that there should be an end to a litigation;

•Re judicata pro veritate occipitur - a judicial decision must be accepted as correct.

Thus, In the case of res judicata, the matter cannot be raised again, either in the same court or in a different court. A court will use the principles of res judicata to deny reconsideration of the matter, and treat the earlier decision as binding. This also results in efficiency in the judicial system. The doctrine of Res Judicata may be direct or constructive and artificial. The rule of constructive res-judicata is engrafted in Explanation IV of Section 11 of the Code of Civil Procedure, and in many other situations also, principles not only of direct res-judicata but of constructive res-judicata are also applied. If by any judgment or order, any matter in issue has been directly and explicitly decided, the decision operates as res-judicata, and bars the trial of an identical issue in a subsequent proceeding between the same parties or persons claiming under them or any of them, through same title. The Principle of res judicata comes into play when in a judgment or order, a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implications, even then the Principle of res judicata on that issue is directly attracted. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding, but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation, and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided, as was held in AIR 1978 SC 1283.

Though both these doctrines of Res Sub Judice and Res Judicata are based upon the principles of Estoppel, that creates a check on frivolous subsequent litigation and lead to judicial efficiency, yet there is a stark difference between the two. While the principle of Res Sub Judice as laid in section 10 CPC, bars trial of a subsequent suit on an issue which is pending decision in a previously instituted suit and applies to a matter pending trial ,the doctrine of Res judicata as envisaged in section 11 CPC, bars the trial of a suit or an issue which has been decided and attained finality in a former suit, and always applies to a matter that has already been adjudicated upon by a court of competent jurisdiction. The general doctrine of res judicata is founded on considerations of high public policy that there must be a finality to litigation and the individuals should not be harassed twice over with the same kind of litigation. The doctrine of res sub judice or stay of suit as contained in Section 10 of the Code aims to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits, between the same parties or persons claiming under them, relating to same matter substantially in issue, and to avoid the conflicting decisions of two competent courts in respect of the same relief. Thus, the doctrine of res judicata is related to finality of judicial decisions, where as the principle of res sub judice avoids contradictory judgments of one or more courts in respect of the same matter in issue.

The litmus test to apply the principles of res sub judice, as discussed above, is that whether the issue involved in the litigation between the same parties and before a court of competent jurisdiction is directly and substantially the same as in the prior instituted pending suit.

The words "matter in issue" used in Section 10 do not mean that entire subject-matter of the subsequent suit and the previous suit must be the same, or that it must be identical. These words mean all disputed material questions in the subsequent suit which are directly and substantially in question in the previous suit. The word `directly' means immediately, without intervention and `substantially' implies essentially or materially. Thus, whenever the subject matter of a subsequent litigation is substantially similar to that of previously instituted suit, the court can invoke the provisions of section 10 CPC to stay the trial of the subsequent suit. It was held by the Supreme Court in Isher Singh v. Sarwan Singh and others 1962 AIR SC 948, that "the question whether a matter is "directly and substantially in issue" would depend upon whether a decision on such an issue, would materially affect the decision of the suit".

It was also held in Aspi Jal and another v. Khushroo Rustom Dadyburjor 2013 (2) RCR (Civil )976 SC that:

"From a plain reading of the aforesaid provision, it is evident that where a suit is instituted in a Court to which provisions of the Code apply, it shall not proceed with the trial of another suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. For application of the provisions of Section 10 of the Code, it is further required that the Court in which the previous suit is pending is competent to grant the relief claimed. 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. The basic purpose and the underlying object of Section 10 of the Code 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 the same relief. This is to pin down the plaintiff to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to protect the defendant from multiplicity of proceeding. The view which we have taken finds support from a decision of this Court in National Institute of Mental Health & Neuro Sciences v. C. Parameshwara, 2005(1) S.C.T. 534 : (2005) 2 SCC 256......"

Further relying upon the said decision of the supreme court it was held in Rajinder Aggarwal and another v. M/s K.R. Finmark Pvt. Ltd.2019 RCR (Civil) 375 :

"The predominant condition is that the matter in issue should be directly and substantially in issue as in the previously instituted suit between the same parties and the decree in one of the suits is bound to frustrate the decree in other suit. The acid test is when the decision of the earlier suit will operate as res judicata in the subsequently instituted suit. The object is to prevent the Courts of concurrent jurisdiction from simultaneously adjudicating upon two parallel litigations in respect of same cause of action and the same subject matter involving same relief. The ratio laid down in Aspi Jal v. Khushroo Rustom Dadyburjor 2013(2) RCR (Civil) 976 (SC) can be relied."

(emphasis supplied by the writer)

Thus, the acid test to determine as to whether the subsequent suit should be stayed or not is to analyse as to whether the decision of the prior pending suit shall have any bearing upon the subsequent suit, so much so whether the same shall curb the litigation by invoking the principles of res judicata. As stated above in the preceding paragraphs, though the body of the section applies only to suits, however in Dr. Aloys Wobben and another v. Yogesh Mehra and others 2014 AIR (SC) 2210 the supreme court held that while invoking the provisions of section 10 CPC that even a "counter-claim" is tried jointly, with the suit filed by the plaintiff, and has the same effect as a cross-suit .Therefore, for all intents and purposes a "counter-claim" is treated as a plaint and since a "counter-claim" is of the nature of an independent suit, a "counter-claim" cannot be allowed to proceed, where the defendant has already instituted a suit against the plaintiff, on the same cause of action.

Although the provisions of Section 10 are mandatory, this does not take away the court's inherent power under Section 151 CPC, so as to stay the proceedings on the facts and circumstances of a given case to secure the ends of justice where section 10 is not is not applicable. Therefore, the court may use its inherent power to secure the ends of justice even when section 10 is not applicable, to prevent abuse of process of the court, the court may stay `former suit' too, by applying its inherent power as was held in Ram Bahadur Thakur And Co. v. Devidayal (Sales) Ltd., AIR 1956 (Bombay) 176.

There may also be a situation where though a subsequent suit has been filed by a party to the litigation, but no such application under section 10 is moved, or the same is moved but is dismissed, and ultimately a decree is passed in the subsequent suit too. In such a situation the decree so passed shall have the same force as any other decree, and the same can not be negated or ignored only on the basis of principles of section 10, the same being only procedural in nature.

It may well be noted that the stay of the suits under section 10 is only pertaining to suits that are subsequently filed in civil courts in India. The explanation to the section makes it abundantly clear that the same shall not apply to any such suit which is filed in India subsequently, even when a prior suit is pending in a foreign country on the same cause of action. However, there may be a situation where a prior suit is pending in India and the party to the litigation files another suit on the same issues in a foreign country. In such a situation the High Court can restrain him from continuation of an action in a foreign court if the same is opposed to equity. The said power of restriction however, cannot be exercised by a subordinate court, as was held in AIR 1927 Bom. 135 (DB) and AIR 1928 Mad. 491(DB).

Thus, what transpires is that principle of res sub judice as envisaged under section 10 CPC is procedural in nature, and is carved out not only to increase the efficiency of judicial work, but also to caste a check on the never ending frivolous litigation that a party to the litigation may wish to carry on.

The main objective behind this doctrine is to avoid wastage of time of the court, conflict of decisions on the same or similar issues between the same parties and to put an end to an issue that is pending trial. The test for res sub judice as discussed earlier is whether a final decision in the previous suit would operate as res judicata in the subsequent suit and if it does then the court shall not be shy to stay the trial of the subsequent suit and making the parties to the litigation stay off the suit as says the principle of res sub judice.

(The author is a practising advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only)

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