CONTENTS:-

SECTION 10 – RES SUB-JUDICE

 Introduction
 Objective
 Conditions for the applicability of Sec. 10
 Section 10 applies to legally maintainable suits
 Section 10 applies only to suits filed in civil courts
 No bar to file second suit
 Stage
 Question of Jurisdiction
 Validity of decree passed disregarding this section
 The subject matter of both suits must be the same
 Consolidation of suits
 Inherent power to grant stay
 Additional Case Laws

CONCLUSION
BIBLIOGRAPHY
SECTION 10 – RES SUB-JUDICE

Introduction
Sec.10 of the Code of Civil Procedure, 1908 provides the rule with regard to stay of suits where
things are under consideration or pending adjudication by a court.
The section reads 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 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.”
A plain reading of Sec. 10 of the Code of Civil Procedure makes clear that where the subject
matter of the suit is one and the same and the parties are also the same, under such
circumstances, if there are two suits between the parties, it is subsequent suit which has to be
stayed and not the previous one.1
The purpose of the section is to bring finality in the judgment and to avoid the contradictory
decision by the two different court, as there is a very good possibility that in case when matter is
simultaneously being decided by different courts of concurrent jurisdiction, the courts may come
up with different decisions and then it will be very difficult to finalize which decisions to be
abided by.
The section does not of course empower one court to stay the proceedings of another court. For
example, a district court exercising insolvency jurisdiction under the Provincial Insolvency Act,
1920, cannot under this section stay a suit pending against the insolvent in a subordinate court. 2
However, since the provisions of the section are mandatory, the court before which the
subsequent suit is pending ought to stay it where all the conditions laid down in the section exist.

1
M.V. Rajashekhar v. M.V. Rajamma, ILR 2004 KAR 2302.
2
Official Receiver v. Palaniswami, (1925) 49 MLJ 203.
Objective
The object underlying Sec. 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 a previously instituted suit. It is to obviate conflict of decisions of two
contradictory decrees being passed in respect of the same subject-matter between the same
parties that the present section has been enacted.
Thus, the basic object of Sec. 10 is to protect a person from multiplicity of proceedings between
the same parties.3
Hence, the two fold objects are:
 Avoid wasting court resources.
 Avoid conflicting decisions.

Conditions for the applicability of Sec. 10

In order to attract the application of this section it is necessary that the following conditions must
be fulfilled:
(1) A previously instituted suit is pending in a court;
(2) The matter in issue in the second suit is also directly and substantially in issue in a previously
instituted suit;
(3) 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 in the Supreme Court;
(4) The court in which the previous suit is pending has jurisdiction to grant the relief claimed in
the subsequent suit;
(5) The parties in the two suits are the same; and
(6) The parties must be litigating under the same title in both the suits.

3
Munnilal v. Sarvajeet, AIR 1984 Raj 22.
Section 10 applies to legally maintainable suits
Section 10 is not the permissive provision, but is a restrictive provision. Section 10 applies only
to those suits which are legally maintainable. Section 10 cannot be invoked to make the
subsequently filed suit maintainable.
Despite all provisions to avoid more than one suit some unavoidable circumstances permits
involvement of same issues in two suits. Those suits are like cross suits or where law permits
second suit specifically like withdrawal of suit with permission to file fresh suit or due to accrual
of cause of action or entitlement for the reliefs subsequent to filing of earlier suit to the plaintiff
and plaintiff had no right to claim relief at the time of filing of earlier suit and where court either
cannot grant relief after taking note of subsequent event or the court refuses to entertain
subsequent event for molding the relief such suits are maintainable and are permissible.
Even where such suits are lawfully maintainable still law, under Sec. 10 prohibits simultaneous
trial of issue and if, due to any reason, trial of suit proceeded, the decision given on an issue
which is earlier in time has been made final by Sec. 11 of the Code of Civil Procedure.
When specific provisions of law prohibits trial of even maintainable suit, then interpreting Sec.
10 and 11 of the Code of Civil Procedure as a permissive provision making maintainable two
suits simultaneously will be against the legislative intention.4

Section 10 applies only to suits filed in civil courts

Sec. 10 suggests that it is preferable 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 Sec.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.
In a recent case, the Delhi High Court declined to apply this section in an application under the
Arbitration Act on the ground that whereas under Sec. 33 of that Act the court can only declare
as to the existence or otherwise of an arbitration agreement, relief awardable under Sec. 20 is
more comprehensive.5
In simultaneous prosecution of the defendant in the criminal case, the civil suit on the same
subject-matter can be stayed only under very exceptional and compelling circumstances. There is

4
Hari Ram v. Lichmahiye, AIR 2003 Raj 319.
5
M. Malsters Pvt. Ltd. v. Allied Engineers, AIR 1975 Del 123.
no question to stay the civil suit instituted against defendants during the pendency of the criminal
case when they have filed their written statement in the civil suit, no question of any
embarrassment or premature disclosure of their defense in the criminal case arises in this case.
Where in a suit--application for stay of suit is filed on ground that subject-matter of suit and
second appeal was same, however, applicants failed to discharge their onus by establishing that
both suits arose out of same cause of action, same subject-matter and same relief. In fact, cause
of action in subsequent suit arose when order in suit under second appeal was passed. The
application for stay of subsequent suit was found liable to be dismissed.6
No bar to file second suit
Though, the heading of this section is ‘stay of suit’, it does not operate as a bar to the institution
of the subsequent suit. It is only the trial of the suit that is not to be proceeded with.7
Stage
The application under Sec. 10 of the Code of Civil Procedure is to be decided after filing of the
written statement. However, that does not mean that the court has no jurisdiction to entertain the
application prior to filing of the written statement.
In a given case, the court may decide the question before filing of the written statement if the
defendant makes available the copy of the plaint of the earlier suit and the other documents
which enables the court to decide as to what the dispute between the parties is.
In case, if the court is not in a position to decide as to what dispute between the parties is on the
basis of the plaint of previously instituted suit, the court may postpone the petition till the filing
of the written statement, because a proceeding instituted first in time cannot be stayed and if
anything in terms of Sec.10 of the Code of Civil Procedure which is only a subsequent
proceeding as between the parties that can be stayed.
For maintaining an application under Sec. 10, the defendant in the suit concerned need not first
file his written statement; the Sec. 10 application can be taken out even before filing the written
statement.8
It is not necessary for the defendant to move the court under this section until he has filed his
written statement in the later case.9

6
Devanayagi Ammal v. Manicka Konar, AIR 2006 Mad 1429.
7
Maharastra State Co-op Mkt. Federation Ltd. v. Indian Bank, AIR 1997 Bom 186.
8
Ashok Kumar Yadav v. Noble Designs Pvt. Ltd., AIR 2006 Cal 237.
9
Wahid-un-nissa Bibi v. Zamin Ali, (1920) ILR 42 All 290.
Question of Jurisdiction
Jurisdiction with reference to the subject matter of a claim depends upon the allegations in the
plaint and not upon allegations in the written statement.
The question of jurisdiction raised by the defendant is a question that is virtually between the
plaintiff and the court itself. The plaintiff invokes the jurisdiction of the court and the court has
always jurisdiction to decide for itself whether it has jurisdiction to try the suit before it.
There is nothing in Sec. 10 of the Code of Civil Procedure to show or suggest, that, if an issue of
jurisdiction has been raised in a previously instituted suit, the defendant cannot invoke provision
of Sec. 10 of the Code of Civil Procedure in subsequent suit unless he withdraws or waives that
objection. An application cannot be dismissed as premature on ground that copy of plaint was
not produced or written statement was not filed in instant suit.10
Validity of decree passed disregarding this section
This section enacts merely a rule of procedure and a decree therefore passed in contravention of
it is not a nullity and cannot be disregarded in execution proceedings. It can be waived, although
the section is so worded as not to leave any discretion in the court where its conditions are
satisfied.11
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. It is not for a litigant to
dictate to the court as to how the proceedings should be conducted, it is for the court to decide
what will be the best course to be adopted for expeditious disposal of the case.12
The subject matter of both suits must be the same
The key words in Sec. 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 contradiction
to the words ‘incidentally or collaterally in issue’.
Even if the cause of action and the relief prayed for or some of the issues in the former and
subsequent suits may differ, that will not be a ground for non-application of Sec. 10 if the final
decision in the former suit would operate as res judicata in the subsequent suit.

10
V.P. Vrinda v. K. Indira Devi, AIR 1995 Ker 57.
11
Shanti Swaroop Sharma v. Abdul Rehman Farooqui, AIR 1965 MP 55.
12
Pukhraj D. Jain v. G Gopalakrishna, AIR 2004 SC 3504.
In a case at Calcutta High Court,13 Rankin CJ laid stress on the identity of the subject matter.
When the two suits were for the recovery of cesses due for different periods, the learned Chief
Justice said that a judgment for the recovery of subsequent cesses does not differ merely as being
for a different form of relief. It is the same kind of relief for an entirely separate subject matter,
namely, a debt which was not in existence at all at the time of the previous suit. It does not
follow, because the words ‘the same relief’ are no longer in the section, that Sec. 10 is applicable
to suits for recovery of successive rents.
A suit was filed alleging infringement of plaintiff-company's right by defendant company by
using trade name of medicine and selling the same in wrapper and carton of identical design with
the same colour combination, etc, as that of plaintiff-company. A subsequent suit was filed in a
different court by the defendant company against Plaintiff Company with same allegations. Held,
subsequent suit should be stayed. A simultaneous trial of two suits in different courts might
result in conflicting decision as there was complete identity of issue in the two suits.14
Consolidation of suits
This method is convenient to the litigants as the evidence is recorded in two or more suits and the
deposition of the same witness in different suits is avoided, saving the time of litigants, lawyers
and the court. However, it is to be noted that if the two suits pending between the parties are at
different stages of the trial, say, for example, one suit is pending at a pre-issue stage and the
other at the defendant’s evidence, there is no point in consolidation of these suits.
Two suits were filed between same parties, involving common question arising between them. It
was held that consolidation and simultaneous hearing of the suits is not barred. Section
10 merely lays down a procedure and does not vest any substantive right in the parties. The claim
in the later suit, was his defence in earlier suit. The court had inherent powers to consolidate the
two suits and to direct analogous hearing of the same, in the ends of justice.15
This section does not bar the power of the court to consolidate for the purpose of hearing an
earlier suit and a later suit.16

13
Chowdhury Jamini Nath v. Midnapur Zamindary Co., AIR 1923 Cal 716.
14
Wings Pharmaceuticals Pvt. Ltd. v. Swan Pharmaceuticals, AIR 1999 Pat 96.
15
Dr. Guru Prasad Mohanty v. Bijoy Kumar Das, AIR 1984 Ori 209.
16
P.P. Gupta v. East Asiatic Co., AIR 1960 All 184.
Inherent power to grant stay
In the case of Manohar Lal Chopra v. Rai Bahadur Rao Seth Hiralal ,17 it has been held that
inherent jurisdiction of the court to make orders ex debito justitiae is affirmed by Sec. 151 of the
Code of Civil Procedure but that jurisdiction cannot be exercised so as to nullify the provisions
of the Code of Civil Procedure.
Where the Code of Civil Procedure deals expressly with a particular matter, the provision should
normally be regarded as exhaustive. In the present case, as stated above, Sec. 10 has no
application and consequently, it was not open to the high court to by-pass s 10 of the Code of
Civil Procedure by invoking Sec. 151 of the Code of Civil Procedure.18 It is only in case where
the proceedings are fraud, vexatious or want of bona fide, malicious & improper, then it comes
within the meaning of abuse of the process of the court.19
Additional Case Laws
[1] Escorts Construction Equipment Ltd. v. Action Construction Equipment Pvt. Ltd.20
Facts
The defendant had filed, for stay of present suit, an application under Sec. 10 of C.P.C., on
ground that the matter in controversy is pending in Jamshedpur Court also. This was opposed by
plaintiff on ground that, the defendants had raised issue of jurisdiction of Jamshedpur Court to
entertain same suit; and that application under Sec. 10 of C.P.C. can be filed in the present suit,
only if objection with respect to lack of jurisdiction was withdrawn in Jamshedpur Court.
Judgment
Delhi High Court held that the conditions requisite to invoke Sec. 10 of C.P.C. are:
 Matter in issue in both the suits to be substantially the same.
 Suit to be between the same parties or parties litigating under them.
 Previously instituted suit to be in the same Court or a different Court, which has
jurisdiction to grant the relief asked.
There is nothing to the effect that defendant should not question the competency of previous
Court in the previously instituted suit, and there remains the fact that the plaintiff in their defense

17
AIR 1962 SC 527
18
National Institute of Mental Health & Neuro Science v. C. Parameshwara, AIR 2005 SC 242.
19
M.V. Rajashekhar v. M.V. Rajamma, ILR 2004 KAR 2302.
20
AIR 1999 Del 73
against Sec.10 of C.P.C., had not stated the Jamshedpur Court is competent. Thus, relief was
granted to the defendant.
[2] Pukhraj D. Jain v. G. Gopalakrishna21 (Landmark Case)
Facts
The appellant were the owners of the suit property. They executed an agreement to sell the suit
property in favor of Dr. G. Gopalakrishna for a consideration of Rs. 1,42,500/- and received Rs.
42,500/- by way of advance. The respondent was also put in possession of the ground floor of the
property.
After sometime, the respondent issued a legal notice rescinding the contract and claimed refund
of the advance amount paid by him. He filed a suit against the appellant claiming the amount
which had been paid by way of advance. After considerable period of time, respondent moved an
amendment application seeking permission to convert the suit into one for specific performance
of the agreement of sale.
This application was rejected by the trial court on the ground that the suit for specific
performance had become barred by limitation. The Revision Petition preferred against the said
order was dismissed by the High Court at the admission stage.
The appellant purchased the property in dispute from the original owners, for Rs. 3,60,000/- and
they were put in possession of the first floor of the building.
Thereafter, Respondent filed an amendment application seeking an amendment of the plain and
claiming an additional amount of Rs. 125 towards the cost of the legal notice. The amendment
application was allowed and the respondent was required to pay an additional court fee of Rs.
12.50 in view of the enhanced claim. However, instead of paying aforesaid amount, the
respondent filed a memo stating that he was not in a position to pay the court fee and as such the
plaint may be rejected being deficiently stamped. The trial court decreed the suit for recovery of
the amount.
Though the suit filed by respondent was decreed yet he preferred a revision petition challenging
the judgment and decree passed in his favour. The High Court though observed that it was an
unusual revision filed by a plaintiff yet allowed the same, set aside the judgment and decree of
the trial court and rejected the plaint.

21
AIR 2004 SC 3504
The appellants after execution of the sale deed in their favor filed a suit seeking eviction of
respondent from the ground floor of the house in dispute and also for mesne profits.
The respondent filed another suit being against appellant in the Court of City Civil Judge,
Bangalore for specific performance of the agreement. In this suit issue No.3 relating to the bar of
limitation and issue No.4 relating to the maintainability of the suit were framed.
The respondent also filed an application under section 10 of C.P.C. seeking stay of his own suit
on the ground that the issues involved were also directly and substantially in issue in a previously
instituted suit being which had been filed by the appellants for his eviction from the ground floor
of the house and for possession.
The Addl. City Civil Judge, Bangalore dismissed the suit after deciding issues wherein he held
that the suit was barred by limitation and the same was not maintainable.
The respondent preferred an appeal in the High Court against the judgment and decree of the
Addl. City Civil Judge, Bangalore. The High Court allowed the appeal and set aside the
judgment and decree of the Addl. City Civil Judge and remanded the matter to the trial court to
dispose of the application moved by the respondent i.e, the plaintiff under section 10 of
C.P.C. for stay of his suit.
It is this judgment and order which is subject matter of challenge in the present appeal.

Issue Raised
The application under Sec.10 of C.P.C. should be considered at first instance before deciding
issues or not.

Judgment
The proceedings in the trial of a suit have to be conducted in accordance with provisions of
the Code of Civil Procedure. Sec. 10 of C.P.C. no doubt lays down that 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.
However, mere filing of an application under section 10 C.P.C. 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. It is not for a litigant to dictate to the court as to
how the proceedings should be conducted, it is for the court to decide what will be the best
course to be adopted for expeditious disposal of the case.
In a given case the stay of proceedings of later suit may be necessary in order to avoid
multiplicity of proceedings and harassment of parties.
However, where 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.
Ratio Decidendi
Mere filing of an application under Sec. 10 of C.P.C. does not in any manner put an embargo on
power of court to examine merits of matter.

[3] Prakash Gangappa Kadahatti v. Awwakka Gangappa Kadahatti22 (Recent Case Law)
Facts
A suit was filed by Smt. Awwakka (Respondent) seeking a declaration that adoption deed
allegedly executed by her was illegal and void ab initio. A decree of permanent injunction was
sought against the petitioner herein, who claimed that he was the duly adopted son under the said
adoption deed, restraining him from interfering with peaceful possession and enjoyment of the
suit properties.
After about two years, petitioner on the filed a suit seeking a declaration that he was the duly
adopted son of deceased Gangappa Kadahatti and Smt. Avvakka (Respondent). He also sought
for a permanent injunction restraining Respondent from alienating the suit property. In the said
suit Resopdent filed an application under Sec. 10 of C.P.C. seeking stay of the proceedings
contending inter alia that questions in issue in the subsequent case were directly and substantially
in issue in the suit instituted earlier by her and, therefore, the second suit had to be stayed as
otherwise it would lead to inconsistent or contradictory judgments. Trial Court had allowed the

22
Writ Petition No. 103345/2015, (Karnataka High Court, 17/03/2016).
said application and has stayed the second suit. Aggrieved by the same, present writ petition was
filed by the alleged adoptive son.
Judgment (Relevant Excerpt)
The issue that directly and substantially falls for consideration in the two suits is with regard to
validity of the adoption of the petitioner by Respondent and her husband. Respondent has filed
the earlier suit seeking a declaration that the adoption was illegal and void ab initio. The second
suit is based on the same adoption deed seeking a declaration that adoption was valid.
In such circumstance, if both the suits are permitted to be tried parallel. There is every likelihood
of inconsistent and contradictory judgments by the two different Courts. Therefore, the matter
squarely falls under Sec. 10 of C.P.C.

CONCLUSION
Sec. 10 deals with the doctrine of res sub-judice. Sec. 10 provides rules with regard to stay of
suits where things are under consideration or pending adjudication by a court. It bars the trial of a
suitor an issue in which the matter directly and substantially in issue has already been
adjudicated upon in a former suit.
Sec. 10 is a mandatory section. Res sub-judice in latin means “under judgement”. It denotes that
a matter or case is being considered by court or judge when two or more cases are filed between
same parties on the same subject matter, the competent court has power to stay proceeding.
However, the doctrine of res-subjudice means stay of suit. This code provides rules for the civil
court in respect of the doctrine of res subjudice. This rule applies to trial of suit and not the
institution of suit.
 BIBLIOGRAPHY
 Books Referred
SIR DINSHAW FARDUNJI MULLA, THE CODE OF CIVIL PROCEDURE.
C.K. TAKWANI, CIVIL PROCEDURE WITH LIMITATION ACT.
M.P. JAIN, THE CODE OF CIVIL PROCEDURE.
DR. AVTAR KHAN, PRINCIPLES OF MOHAMMEDAN LAW.

 Research Portals Accessed

www.lexisnexis.com
www.scconline.com
www.westlawindia.com

 Statue Referred
The Code of Civil Procedure, 1908
 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude of my teacher Dr. S. P.

Srivastava who gave me the golden opportunity to do a wonderful project on the
topic ‘Res sub judice’, which also helped in doing a lot of research and I came to
know about so many new things I am really thankful to them.

Secondly, I would also like to thanks my parents and friends who helped me a lot
in finalizing this project within the limited time frame.

Thank you…