Res-sub judice(stay of suit)

 

 

Q 7(a) Does the code of Civil Procedure make any provision for preventing courts of concurrent jurisdiction from trying at the same time two parallel suits in respect of the same matter in issue? If so what? Discuss.

Q 7 (b) what do you mean by Res-sub judice(stay of suit)

Section 10 CPC 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 ¹[India] having 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.

The object of the Rule contained in Section 10 is to prevent the court of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of a same cause of action, the same subject matter and the same relief.(Karnal Distillery Co. Ltd. V. L.P. Jaswal, AIR 1951 Punj (Simla)275). This section contemplates that the institution of the second suit is not barred, though the trial may not proceed with(Annamalay Chetty v, B.A. Thronill, AIR 1931 PC 263). Furthermore, Section 10 authorize only stay of the proceeding not the dismissal of the proceedings (Ashrafi Lal Ramdeo v. Ganeshi Ram Jagarnath, AIR 1952 All 546)

 The policy of the law is to confine the plaintiff to one litigation, thus obviating the possibility of two contradictory verdicts by one and the same court in respect of the same relief.

In Shetty v Giridhar, AIR 1982 SC 83 it was held the following conditions are essential in order that the rule of res sub judice and under the trial of the suit can be stayed:

(1)          There must be two suits, one previously instituted and the other subsequently instituted.

(2)          The matter in the subsequent suit must be directly and substantially in the previous suit.

(3)          Both the suits 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 is 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.

As soon as the above conditions are satisfied, a court cannot proceed with the subsequently instituted suit since the provisions contained  in Section 10 are mandatory

 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;( National Institute of Mental Health and Neuro-Sciences v. C. Parmeshwara, AIR 2005 SC 242.)

 Two suits—Between the same parties—Involving same subject‑matter and same questions—Held, the subsequent suit should be stayed; Radhika Konel Parekh v. Konel Parekh, AIR 1993 Mad 90: (1993) LW 159: (1993) 1 Mad LJ 163.

For the purpose of the operation of Section 10 it is not necessary that all the parties on either side should be the same in both the suit; it is enough if there is a substantial identity of the parties, where the subject matter of suits are not the same, section 10 will have no operation merely because the main issue in both the suit is common. (Bijendera Kumar v. Basant Kumar AIR 1984 All 81)

The stage at which Section can be invoked:-

Though normally an application under Section has to be  decided after filling of the written statement but in a given case the court may decide the question before filling of a written statement if the defendant makes available the copy of the plaint of the earlier suit and the documents which enable the court to decide as to what the dispute between the parties is. (Shri Ram Tiwary v. Bholi Devi, AIR 1994 Pat 76)

S. 10 Has to invoked during the trial of the subsequent suit. Thus, where an objection that a previously instituted suit is pending is not taken before the trial court and the judgment has been pronounced, the objection cannot be taken in appeal and consequently, the appellate court cannot be prohibited from proceeding with the hearing of the appeal.(Munnilal v. Sarvajeet, AIR 1984Raj 22)

Burden of Proof  

The onus is on the defendant to show that the case comes under S. 10