Doctrine of Res Sub Judice does not bars the institution of second suit
Judicial dexterity is not only confined to the judges and courts, in fact it relies more on apt implementation of general laws and doctrines. To know the ‘judicial dexterity’, one should know the functioning of courts and the implementation of suitable laws.
Doctrine of Res sub judice
The term sub judice in Latin means ‘under judgment’, which says that present matter or case is being considered by Judge or court. Doctrine of res sub judice is coded under sec.10 of Civil Procedure code. The Doctrine of res sub judice means, ‘stay of suit’ because the matter is already being heard. Thus, a party is entitled to prevent the trial of second suit on the basis of this doctrine.
The purpose behind this provision is to prevent the court of concurrent jurisdiction from the simultaneous consideration or trial of two suits between the same parties on the same cause of action in respect of the same subject matter.
Sec.10 of Civil procedure Code, 1908 personates this doctrine as:
“No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in previously instituted suit between the same parties, or between parties under whom they or any of them claim litigation 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 govt. and having like jurisdiction, or before the supreme court.”[1]
Nature
This is not a substantive right but purely procedural, therefore the party is entitled to waive this title. This rule applies to the trial of a suit and not the institution thereof.[2]
What if the parties waive their right?
If the parties waive their right and expressly asked the court to proceed with the subsequent suit , they cannot afterwards challenge the validity of the subsequent proceedings.[3] – Gangaprashad v. Banaspati, AIR 1937
If the parties waive their right and expressly asked the court to proceed with the subsequent suit , they cannot afterwards challenge the validity of the subsequent proceedings.[3] – Gangaprashad v. Banaspati, AIR 1937
Object
The policy of law which appears behind this law is to provide powers, so that the court must be restricted at the prior stage from passing any contradictory judgment on the subsequent suit.
Why this doctrine is so necessary?
- A party must not be put in the peril for the same cause more than once.
- To prevent the two courts of the same jurisdiction from passing contrary judgments on the same subject matter.
- Two contrary decrees on the same subject matter cannot be enforced.
- In order to avoid the multiplicity of the proceeding.
- In order to save the time of the court.
Why this doctrine is so necessary?
- A party must not be put in the peril for the same cause more than once.
- To prevent the two courts of the same jurisdiction from passing contrary judgments on the same subject matter.
- Two contrary decrees on the same subject matter cannot be enforced.
- In order to avoid the multiplicity of the proceeding.
- In order to save the time of the court.
Conditions for application
If the below conditions are satisfied the doctrine of res sub judice shall apply & the trial of subsequent suit shall be stayed by the court:-
- There must be two suits one previously instituted and the other subsequently instituted.
- The matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit.
- Both the suits must be between the same parties or their representatives.
- 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.
- The Court in which the previous suit is instituted must have jurisdiction to grant the relief claimed in the subsequent suit.
- Such parties must be litigating under the same title in both the suits.
In case of Manohar lal v. Seth Heeralal- The S.C. has held that the provisions of the sec.10 are Mandatory and such cannot be avoided by the courts.
Does the court have any inherent power to make the suit stay even without fulfillment of the above conditions?
Even where the provisions of sec-10 do not strictly apply, a civil court has inherent power under Sec.151 to stay a suit to achieve the ends of justice.[4]- Jado Rai v. Onkar Prasad, AIR 1975
Can court pass interim order, after making an order of stay of suit?
An order of stay of suit does not take away the power of court from passing interim orders.[5]
Indian Bank v. Maharashtra state Coop. 1998- Even in a stayed suit, it is open to the court to make interim orders, such as, attachment before judgment, temporary injunction, appointment of receiver, amendment of plaint or written statement etc.[6
Pendency of a suit in Foreign Court
Explanation of this section makes it clear that the pendency of a suit in foreign court does not preclude the courts in India from trying a suit, instituted on the same cause of action.
What if a decree is passed in contravention of this doctrine?
A decree passed in contravention of this doctrine is not void, and therefore, cannot be disregarded in execution proceedings.[7]- Pukhraj D. Jain v. G. Gopalakrishna 2004
Hence I prove that, this doctrine bars only the trial and not the institution of the subsequent suit.
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What if a decree is passed in contravention of this doctrine?
A decree passed in contravention of this doctrine is not void, and therefore, cannot be disregarded in execution proceedings.[7]- Pukhraj D. Jain v. G. Gopalakrishna 2004
Hence I prove that, this doctrine bars only the trial and not the institution of the subsequent suit.
Kindly share this link https://shataxiamicuslex.blogspot.com/2020/05/doctrine-of-res-sub-judice.html
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