INTRODUCTION:
This blog is pertaining to all the aspects concerning res sub judice which is provided under section 10 of Civil procedure code herein after mentioned as CPC. It includes the law on this issue and significant precedents based on the said issue. It also covers the requisites of res sub judice, objective behind section 10, remedy under section 151 in case of non applicability of section 10, what will be test for the application of section 10 and finally power of court to determine legal point in subsequent suit.
LAW ON RES SUB JUDICE:
Section of CPC is confers the rule of res sub judice, the said provision starts with “no court shall proceed” which shows that it is a bar on the court to proceed and not the bar on the litigant to file a suit.
SECTION 10 STAY ON 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 1[India] have jurisdiction to grant the relief claimed, or in any Court beyond the limits of 1[India] established or continued by 2[the Central Government 3* * *.] and having like jurisdiction, or before 4[the Supreme Court].
Explanation.–The pendency of a suit in a foreign Court does not preclude the Courts in 1[India] from trying a suit founded on the same cause of action.
REQUISITES OF SECTION 10:
- No court shall proceed with the “trial”;
- Matter in issue is also “directly and substantially” in issue in previously instituted suit;
- Suit between the “same parties or their representatives”;
- Earlier suit is pending in any court in India having “jurisdiction to grant relief”;
ASPI Jal & Anr. vs. Khushroo Rustom Dadyburjor (2013)4 SCC 333: In the said case court observed the term “matter in issue” and held that for the applicability of section 10 of CPC it is essential that entire subject matter in controversy must be same between previous suit and subsequent suit. Mere common ground in both the suits will not attract section 10 of CPC.
NATURE AND SCOPE OF SECTION 10:
This section applies to the trial of the suit as it bars the court from proceeding with the trial and it does not bar the parties to file a suit concerning an issue which is directly and substantially in issue in previously instituted suit.
Indian Bank vs. Maharashtra State Coop. Marketing Federation LTD.: (1998) 5 SCC 69: In the said case the issue before the court was concerning the applicability of section 10 in case of summery suit filed under order 37 of CPC. To adjudicate the said issue court looked into the nature and scope of section 10 and held as under:
Whether the widest meaning should be given to the word “trial” or that it should be construed narrowly must necessarily depend upon the nature and object of the provision and the context in which it is used.
the word “trial” in Section 10 will have to be interpreted and construed keeping in mind the object and nature of that provision and the prohibition to “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”.
The provision is in the nature of a rule of procedure and does not affect the jurisdiction of the court to entertain and deal with the latter suit nor does it create any substantive right in the matters. It is not a bar to the institution of a suit.
OBJECTIVE OF SECTION 10:
This section intends to protect the multiplicity of the proceedings regarding the same issue. It prevents the court of concurrent jurisdiction from passing contradictory judgments on the same issue. It also prevents courts from wasting time on irrelevant issues which are also been instituted before another court for determination of rights.
In Indian Bank vs. Maharashtra State Coop (supra)court also observed the objective of section 10 as under:
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.
National Institute of Mental Health & Neuro Sciences v. C. Parameshwara, (2005) 2 SCC 256: in the said case also, court looked into the object of section 10 of CPC:
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.
SECTION 10 IS MANDATORY:
The term is “shall” “shall not proceed with the trial” makes the section 10 a mandatory suit. When the requisites of section 10 are fulfilled, the subsequent court is barred to proceed with the trial.
In Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal: AIR 1962 SC 527: In para graph no. 39 court opined that provision of section 10 is clear definite, and mandatory. When conditions stipulated under section 10 are established court have no power to proceed with the trial.
TEST FOR APPLICATION OF SECTION 10:
Section 10 of CPC is applicable where matter in issue in both the suit is identical moreover when it is satisfied that the final decision of the previously instituted suit will attract section 11 of CPC that is res judicata in case of filing of subsequent suit.
National Institute of Mental Health & Neuro Sciences v. C. Parameshwara, (supra): in the said case court further observed test for the applicability of section 10 of CPC:
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 contradistinction 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 the subject-matter in both the proceedings is identical.
REMEDY UNDER SECTIO 151:
Section 151 of CPC is inherent power of civil court that is to be exercised to serve the ends of justice. So, the question is whether court can invoke inherent power under section 151 in a case where the conditions envisaged under section 10 are not fulfilled?
In Manohar Lal Chopra vs. Rai Bahadur (supra): apex court answered negatively to the aforesaid issue, court evaluated that when remedy under section 10 could be availed then recourse to the inherent power under section 151 is not justified.
The said question is still res integra as it is still rebutted that power under section 151 could be exercised for the ends of justice and the only bar on the court is that court has no power under section 151 to do something which is prohibited under the CPC.
REMEDY AGAINST VEXATIOUS SUIT:
In a situation where the previously instituted suit is frivolous and vexation then remedy is under section 35 A of CPC and not under section 10 of the CPC. Section 35 A indicates the legislative intent and provides compensation as cost remedy. Section 10 will not become inapplicable to the subsequent suit only on the ground that the previously instituted suit is vexatious.
BAR ON INTERIM ORDER:
Whether the bar under section 10 to proceed with a trial also bars the court from passing the any interim order in subsequent suit. The said issue was addressed by apex court in Indian Bank vs. Maharashtra State Coop (supra)as under:
It is not a bar to the institution of a suit. It has been construed by the courts as not a bar to the passing of interlocutory orders such as an order for consolidation of the latter suit with the earlier suit, or appointment of a receiver or an injunction or attachment before judgment. The course of action which the court has to follow according to Section 10 is not to proceed with the “trial” of the suit but that does not mean that it cannot deal with the subsequent suit any more or for any other purpose.
DECREE PASSED NOT NULLITY:
Nevertheless section 10 is a bar on the court to proceed with the trial, however where a decree has been passed by the court in a subsequent suit filed the said decree will not amount to nullity as the section 10 of CPC is merely a rule of procedure.
Pukhraj D. Jain v. G. Gopalakrishna, (2004) 7 SCC 251:
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 object of the section is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The section enacts merely a rule of procedure and a decree passed in contravention thereof is not a nullity.
QUESTION OF LAW:
Another issue with regard to the applicability of section 10 is whether same will be applicable when only question of law is to be adjudged in the subsequent suit?
In Pukhraj D. Jain v. G. Gopalakrishna (supra) court further opined that where a subsequently instituted suit can be decided on purely legal points without taking evidence, it is always open to the court to decide the relevant issues and not to keep the suit pending which has been instituted with an oblique motive and to cause harassment to the other side.
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