Consolidation of suits
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This Article is written by Shruti Singh, 2nd year Law student from Hidayatullah National Law University, Raipur. This article explains the Principle of Res Sub-Judice and various case laws associated with it.

Meaning

Res means every object of right that forms the subject matter in a particular case. In Latin, the term Sub-judice means ‘under a judge’ or in other words, a matter ‘under consideration’. It means a cause that is under trial or pending before a court or judge. The doctrine of res-judicata prevents the trial of a suit which is already pending in a court of competent jurisdiction. When the same parties file two or three cases in the same matter, the competent court has the power to stay proceedings of another court. The primary aim is to prohibit the courts of concurrent jurisdiction from simultaneously entertaining two parallel litigations.

Nature, Scope and Objective

The principle of res sub-judice prevents the court from proceeding with the trial of any suit in which the matter in issue is directly or substantially the same with the previously instituted suit between the same parties and the court where the issue is previously instituted is pending has the power to grant the relief sought.

This rule is applicable to the trial of the suit and not the institution. It does not restrict the court from passing interim orders like injunction or stay. However, it applies to revisions and appeals.

The purpose behind this rule is to prevent multiplicity of cases in courts. It is also sought to prevent the plaintiff from getting two separate decisions from different courts in his favour or two contradictory judgements. It also ensures to protect the litigant from unnecessary harassment. The policy of law is to restrict the plaintiff to one legislation, thus obviating the possibility of two conflicting verdicts by one and the same court in respect of the same relief.

Meaning of suit

The word suit has not been defined anywhere in the Code, but it is a proceeding which is commenced by presentation of a plaint. In Hansraj Gupta and Ors. vs. Official Liquidators of the Dehra Dun-Mussoorie Electric Tramway Co.Ltd., the Privy Council has defined the expression “suit” as a civil proceeding instituted by presentation of a suit.

In Pandurang Ramchandra vs. Shantibai Ramchandra, the Supreme Court has stated suit is to be understood to apply on any proceeding in a court of justice by which an individual pursues that remedy which the law affords.

Conditions

Section 10 of the Civil Procedural Code, 1908 deals with the conditions required to apply the principle of res sub judice. The conditions in the process of application of res sub-judice are:

  • Where the matter in issue is same

Section 10 clearly states that the matter in issue in both the suits must be directly or substantially be the same.In other words there must be two suits one that is previously instituted and another that is subsequently substituted. The issues of both the suits should be same to get the benefit of this principle, it is not sufficient if only one or two issues are common. In the circumstances were the entire issues are not the same, the court may exercise its power under Section 151 and stay the trial in a subsequent suit or the trial of the suit may be consolidated. The power of courts to stay the trial under Section 151 is discretionary in nature and can be exercised only when there is an abuse of process of court and if it defeats the ends of justice.

According to Indian Evidence Act, 1872 “matter in issue” are of two kinds:

Matter directly and substantially in issue– Here “directly” means immediately i.e. without any intervention. The word “substantially” implies essentially or materially.

Matter collaterally and incidentally in issue– It is just contrary to the matter directly or substantially in issue.

  • Where the parties in suits are same

The two suits should have the same parties or their representatives.

  • Where the title of the suit is same

The title of both the suits for which the parties are litigating should also be same.

  • Where the suit must be pending

The former suit must be pending in the court while the latter suit is instituted. The word pending is for the previously instituted suit, where the final decision has not been arrived at.

  • In a competent court

Section 10 also specifies that the former suit must be pending before a court which is competent to carry out the trial. If the former suit is pending before an incompetent court, no legal effects can flow from it.

Illustrations:

  • ‘X’ and ‘Y’ decide to enter into a contract for the sale of machine. ‘X’ is the seller and ‘Y’ is the purchaser. Y defaulted in paying the amount of the sale to X. X first filed a suit for recovery of the entire amount in Bangalore. Subsequent to this, X filed another suit at Bombay High Court demanding Rs. 20,000 as outstanding balance. In X’s suit Y took the defence that X’s suit should be stayed since both the suits are on similar issue. However court of Bombay held that since X’s first suit and the second suit have similar issues similar to the first suit, the subsequent suit is liable to be stayed. 
  • ‘P’ was an agent in Patna who agreed to sell goods in Odisha to ‘M’. ‘P’ the agent then filed a suit for balance of accounts in Patna. ‘M’ sues the agent ‘P’ for accounts and his negligence in Odisha; while the case was pending in Patna. In this case, Patna court is precluded from conducting trial and can petition Odisha Court to direct a stay of proceedings in Patna Court.

The moment the above conditions are satisfied, a court cannot proceed with the subsequently instituted suit since the provisions contained in Section 10 are mandatory and the court cannot exercise its discretion. The order of stay can be made at any stage of the proceedings.

However, Section 10 takes away the power of the court to examine the merits of the case thoroughly. If the court is satisfied with the fact that the subsequent suit can be decided purely on legal point, it is open for the court to decide in such a suit.

In Neeta vs. Shiv Dayal Kapoor & Others it was held the subsequent matter can not be stayed if the conditions mentioned in Section 10 are not fulfilled. In the apparent case, the two courts which tried the same issues were not the courts having concurrent jurisdiction. Therefore, the proceedings in the subsequent court were not stayed.

Test

The test of applicability for Section 10 is whether the decision in a former given suit would operate as res judicata(decided case) in the subsequent suit. It this happens, then the latter suit must be stayed. This can also be inferred from S.P.A Annamalay Chetty vs. B.A Thornbill.

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Suit pending in foreign court

The explanation clause of Section 10 clearly provides that there is no limitation on the power of an Indian court to try a subsequent instituted suit if the previously instituted suit is pending in a foreign suit. This also means that the cases can be carried on simultaneously in two courts.

Inherent power to stay

The word inherent has very wide meaning which includes an inseparable part of something or an attribute or quality which is permanent and essential. It is something which is intrinsic and attached to a person or object. Therefore, inherent powers are the powers of the courts which are inalienable i.e., something which can be separated or taken away from the courts and they exercise it in order to provide complete justice to the parties.

Even where the provisions of Section 10 do not strictly apply, a civil court has inherent power under Section 151 to stay a suit to achieve justice. Additionally courts can also consolidate different suits between the same parties in which the matter of issue is substantially the same. In Bokaro and Ramgur Ltd. vs. State of Bihar and Another(1962) the matter in issue was regarding the ownership of a property. The court in this case used its power and consolidated different issues having same matter.

Consolidation of suits

The objective behind Section 10 is to avoid two contradictory decisions in the same matter by different courts. To overcome this the courts can pass an order of consolidation of both the suits. In the case of Anurag and Co. and Anr. vs. Additional District Judge and Others, it was explained that consolidation of suits is ordered under Section 151 for meeting the ends of justice as it saves the party from a multiplicity of cases, delays and expenses. The parties are also relieved from producing the same evidence at two different places.

Effect of contravention

Any decree passed in contravention of Section 10 is not null and therefore cannot be disregarded completely. It is to be clearly understood here that it is only the trial and not the institution of the subsequent suit which is barred under this section. But this right which is given in favour of parties can be waived by them. Hence, if the parties in a suit decides to waive their rights and ask the court to proceed with the subsequent suit, they cannot afterwards challenge the validity of the subsequent proceedings.

Interim orders

Interim orders are the temporary orders which are passed for a limited duration just before the final order. An order of stay under Section 10 does not take away the power of the court to pass interim orders. Therefore, the courts can pass such interim orders as it thinks fit like attachment of property, injunction etc.

Difference between Res Judicata and Res Sub Judice

Res Judicata

Res Sub Judice

Res judicata applies to a decided or adjudicated matter.

Res Sub judice applies in a matter which is pending.

It bars the trial of a suit or an issue which has already been decided in a former suit.

It bars trial of a suit which is a pending decision in a previously instituted suit.

Section 11 of the Civil Procedural Code, 1908 deals with res judicata.

Section 10 of the Code exclusively deals with the principle of res sub judice.

Conditions:

  1. A court of competent jurisdiction must have given the decision in the former instituted suit.
  2. The matter in issue in the subsequent suit must be same which is directly or substantially in issue in the former suit.
  3. The parties should be same in both the suits.
  4. The court which gave decision in former suit must be a court of competent jurisdiction.
  5. The parties in the former suit must have litigated under the same title or in other words in the same capacity. 

Conditions:

  1. There must be presence of two suits one which was formerly instituted and other which was subsequently instituted.
  2. The issues in the subsequent suit should be directly or substantially be the same with the previous suit.
  3. The parties in both the suits should be same.
  4. The court in which the previous suit was instituted must be a court which has competent jurisdiction to try such suit.
  5. The title should also be the same in both the suits under which they are litigating.

Conclusion

Res sub judice as a doctrine has the main purpose of reducing the burden of courts from abundance cases. In other way it also reduces the burden of parties to adduce oral or written evidence twice in different courts. It also avoids conflicting decisions and makes sure to minimise the waste of resources of courts. The court can exercise this power and put a stay on the subsequent suit. The people who try to misuse their right in order to get double benefits are looked after through this principle. Anyways the Indian judiciary is overburdened with many cases and if parties will start instituting cases twice then one can’t even imagine the situation of the courts in giving decision in all such cases.

References


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