Res Subjudice Section 10 of civil procedure code
Section 10 of the Code of Civil Procedure deals with the principle of res sub-judice, which bars the trial of a subsequent suit in which the matter in issue is also directly and substantially in issue in the former suit between the same parties. The object of a provision of the kind is to prevent courts of concurrent jurisdiction from proceeding simultaneously with the trial of two suits on the same matter. Such trials may mean waste of public time and may result in conflicting decisions.
MEANING OF RES SUBJUDICE:
Res means everything that may form an object of right like subject matter or a matter in controversy. Sub-judice means another consideration. It means a cause in controversy under determination of a court of law.
PRINCIPLE OF RES SUBJUDICE:
The doctrine prohibits the trial of two parallel litigation in respect of the same cause of action and the same subject-matter between the same parties.
RATIONAL BEHIND THE PRINCIPLE OF RES SUBJUDICE:(2006 SCMR 1261) Rational behind section 10 seems to be based on the principle that multiplicity of litigation should be avoided and no one should be trouble twice for the same cause of action.
CONDITIONS FOR THE APPLICABILITY OF RES SUBJUDICE:
(i) Same Matter in Issue:
The matters in issue in both the suits must be directly and substantially the same. The entire matter in issue in both the suits must be the same in order to attract the provisions of the sec 10, it is not sufficient if one or some issues are in common. However, where the entire matter in issue in both the suits is not the same, the court may in exercise of its inherent jurisdiction under sec 151 stay the trial of any particular issue involved in the subsequent suit or the trial of the suit may be consolidated but the stay under sec 151 is discretionary and will be ordered only if trial of the suit or issue will result in abuse of process of court or will defeat the ends of justice. Stay of the proceedings may also be directed under Article 203 of Constitution of Pakistan. Further explanation has been given under Sec 11 of Res Judicata.
(ii) Same Parties:
Both the suits must be between the same parties or their representatives.
(iii) Same Title:
The parties must be litigating in both the suits under the same title.
These two conditions are more comprehensively elaborated in section 11 (resjudicata).
(iv) Suit must be pending:
The previous suit must be pending in a Court when the later suit is instituted. The word pending refers to the previously instituted suit which is undergoing adjudication and has not been finally disposed of.
(v) Competency of Court:
Section 10 of CPC applies only when a previous suit is pending in the same court competent to try the suit. It must have jurisdiction to grant the relief claimed by the parties. Therefore if the previously instituted suit is pending before a court not having jurisdiction to entertain it, no legal effects can flow from such institution.
WHEN CONDITIONS OF SECTION 10 ARE FULFILLED:
When conditions of Section 10 are fulfilled, it is mandatory upon the court trying the subsequent suit to stay proceedings in the suit. An application for stay should be heard and determined at the earliest stage of the suit.
WHEN CONDITIONS OF SECTION 10 ARE NOT STRICTLY FULFILLED:
When conditions of Section 10 are not strictly fulfilled the suit may, for the end of justice, be stayed under Section 151 of Civil Procedure Code, or the trial of the two suits may be consolidated but the suit however cannot be dismissed. Sec 10 does not bar the institution of subsequent suit but only the trial of such suit. After stay of proceedings in subsequent suit, the decision given in the previously instituted suit will operate as res judicata by virtue of the provisions of section 11.
OBJECT OF RES SUBJUDICE:
The object of res subjudice is to prevent the court of parallel jurisdiction to proceed with the trial and to confine the parties to one suit and limit the proceedings and evidences.
RES SUBJUDICE AS A BAR UPON THE JURISDICTION OF THE COURT:
Where Section 10 applies, it bars the jurisdiction of the subsequent court to try the suit till the former is pending before the court of competent jurisdiction.
RES SUB-JUDICE NOT APPLIES TO FOREIGN COURT:
The doctrine of Res Sub-Judice will not apply to foreign courts because they are neither the Pakistani courts nor established by Central Government of Pakistan. The pendency of a suit in a foreign court does not preclude the courts in Pakistan from trying the suit founded on the same cause of action.
Case laws and Precedents related with the principle of res subjudice:
In (1968) 70 Punj. (RCD) 84,
It was observed that when once an order of stay is made under this section, the court ceases to have jurisdiction over the suit till the other suit is disposed of.
In (1994) 1 Civil court 99 (Bom.)
it was observed that S. 10 contemplates the pendency of two suits between the same parties covering the same field in which even the later suit may be stayed.
Revision against an order made under section 10:
A revision is competent against an order under this section. If the stay is ordered in exercise of inherent powers of court under S. 151 a revision may not lies as it will be an order in the exercise of discretionary jurisdiction.
We may conclude that the principle of res sub-judice is incorporated to meet the end of justice. Section 10 bars the jurisdiction of court on two parallel litigation on the same cause of action. By virtue of this rule, court can stay the proceedings of subsequent suit. Section 10 of Civil Procedure Code lays down a procedure and does not vest any substantive right on the parties.