Analysis of Doctrine of Res Sub Judice in Code of Civil Procedure

The Author, Parth Verma, is a 1st year BBA LLB student at Christ University, Bengaluru. He is currently interning with LatestLaws.com.

Abstract

The basic purpose of all the courts is to provide fair and equitable justice to all the citizens in India. Hence, there is a need to ensure that only one court deals with a particular case at a time. For the same purpose, the Doctrine of Res Sub Judice was derived under the Code of Civil Procedure. This can act as a tool to ensure that no multiplicity of cases arise.

In the recent times, this doctrine has gained a lot more importance as it plays a vital role in proper functioning of the Judicial Machinery in the country. Sub Judice essentially means a ‘matter that is still in consideration of the Court’ or the suit is still pending. This Doctrine is built upon the concept of ‘Sub Judice’ and is as relevant as it was at the time when it was formulated which means it has survived the test of time.

So, what is meant by the ‘Doctrine of Res Sub Judice?’ Why has it gained more prominence in the contemporary times? How is it beneficial to the Judicial System? This article aims to answer all these and several other questions.

Introduction

The Code of Civil Procedure was introduced for the first time by the British in 1858 to consolidate the procedural laws in the civil courts. Later on, several changes were brought in this code and eventually all the drawbacks were filled by the enactment of the Code of Civil Procedure, 1908. Under this code, the Section 10 lays down the procedure for staying a lawsuit. This only is said to be the ‘Doctrine of Res Sub Judice’.

Sub Judice as stated earlier refers to a Latin term which means that a case is pending before the Court. Res in Latin essentially refers to a particular object or a matter. This Doctrine states that a stay can be imposed upon the trial being conducted by the Court for a suit having the similar matters in issue and the same parties with respect to a previously instituted suit in some court having concurrent jurisdiction, where the case is pending, it automatically gets the right to pass the judgement. This doctrine only puts a stay on the trial being conducted in the court where the same suit was subsequently instituted but doesn’t restrict or dent the institution of the suit.

This doctrine is quite rigid in nature and is not subject to the discretion of the courts. All the Courts in India need to follow the same doctrine. It has over the years played a vital role in ensuring smooth functioning of the Courts which is going to be discussed in detail in the coming sections.

At the International Level, since different countries follow different economic models and have varying structure of courts, there is no as such Civil Code which is internationally accepted. The civil procedure is to a very limited extent present in the International Conventions or Bilateral Agreements. The major reason behind this can also be that the countries have the sovereignty to decide their own national system of courts due to which the differences might arise with respect to the procedure to be followed by the Civil Courts.

Despite the inconsistencies or diversity of the civil procedure between the different states, there have been efforts to bring in some uniformity in the Civil Procedure for International Litigation. The Hague Conference on Private International Law, an intergovernmental organization brought in Service Convention and the Evidence Convention under the Civil Procedure that brought in a lot many advantages with it that helped in improving quality of Litigation at the International Level. India also played a very active role in its formulation.

To bring in further improvements in the Judicial System all over the world, several initiatives like these are being taken. In India as well, this doctrine needs to be used effectively and in the best possible manner so that the Courts can be managed effectively.

Res Sub Judice and Res Judicata

The Doctrine of Res Sub Judice has been stated under section 10 of the Code of Civil Procedure that talks about stay on the suit in a particular court. If two cases have exactly the same parties and the same matter in issue and have been filed in two different courts having concurrent jurisdiction, a stay can be put by a competent authority on the trial in the court where the suit was subsequently instituted. ‘Matters in issue’ refer to the points of consideration that have been contended by the Petitioner in the plaint filed by him/her to the Court against any other party. In such a case, the court in which the suit was initially instituted and is still pending will have the power to pass the judgement. It helps in ensuring that no two courts decide on the same case as their judgements could be contrary due to parallel litigation taking place.

Illustration

Suppose there are two companies namely ABC Ltd and XYZ Ltd and both of them deal in Clothing for Men. Both the companies have similar logo, packaging and design of their products. Both also sell their products all over India and carry out their production in Karnataka and West Bengal respectively. Due to the very similar logo, it amounted to trademark infringement. As a result, ABC Ltd filed a suit against XYZ Ltd in the Karnataka High Court on 5^th January 2020. Later on, even XYZ Ltd filed the suit for exactly the same reasons in the Calcutta High Court on 1^st February 2020. Since in this situation, the matters in issue and the parties are exactly the same, a stay will be imposed on the trial being conducted in the Calcutta High Court. The Karnataka High Court, where the suit was first instituted on 5^th January 2020 will have the power to pass the Judgement in this situation since both the courts had concurrent jurisdiction.

In the case of Neeta v. Shiv Dayal Kapoor and Others (2013)[1], there was a dispute with respect to whether the will was legally valid or not. The Respondent even when the case had been filed in the trial court got the property probated from the Lok Adalat. The proceedings in the Lok Adalat as a result was stayed the High Court. However, since in this case the two courts didn’t have any concurrent jurisdiction and further went on to say that the Probate Court (Lok Adalat) has the inherent power to pass any such decision and hence section 10 will not apply. Therefore, it was declared by the Court that a stay can’t be imposed on the proceedings in the subsequent court if they don’t have a concurrent jurisdiction.

Further, the stay on the trial in a given court cannot be imposed by another court of concurrent jurisdiction and can only be imposed by court itself or some other competent authority. The same was declared in the case of Official Receiver of Coimbatore v Palaniswami (1925)[2] that no court can put a stay on proceedings in the other court if they have concurrent jurisdiction.

However, it was also declared at the same time that the High Court in any given state can impose a stay on the proceedings that are being conducted in any District Court. This power is given to the High Court to supervise the proper functioning of the Subordinate Courts that has been defined under Article 227 of the Indian Constitution.

The common case that has been filed in the two different courts might even lead to some contradictory judgements even with the same matters in issue. To resolve this issue, the Courts can pass an order for the consolidation of both the cases into one civil suit to reduce the delays and the expenses caused due to multiple cases.

In the case of Anurag and Co and Anr v. Additional District Judge and Others (2006)[3], it was declared by the Court that though there is no provision for consolidation of suits under Section 10 which governs the concept of Res Sub Judice, gives way to the inherent powers granted to the Court in Section 151 of the Code of Civil Procedure. Since the parties were substantially the same the Court relied upon the judgement in the case of Chitivalasa Jute Mills v. Jaypee Rewa Cement (2004)[4] to declare that the basic purpose of consolidation is to prevent multiplicity of cases and unnecessary delays and expenses that both the parties would need to bear. Hence, it should be given more preference even if it means not exactly following the provisions under Section 10 of the Code of Civil Procedure.

In another case of Sheopat Rai v. Warak Chand (1919)[5], it was stated that this Section only lays down the procedural aspect with respect to a trial in a civil court. A judgement, even if it’s passed by not following the appropriate procedure will not be declared as null and void and would still be binding on the Courts as a Judicial Precedent in the future.

When the judgement is given by the Court where the suit was initially filed, it would be binding on the subsequent court as ‘Res Judicata.’ It is also a Latin Term that means a ‘matter that has been decided by the competent court.’ The Doctrine of Res Judicata has been stated under the Section 11 of the Code of Civil Procedure. If a case has already been decided by a Court, a stay will be imposed upon the trial in the subsequent court where the same case has been filed. This decision is final and is not to be reopened.

In the case of Satya Charan v. Dev Rajan (1962)[6], it was declared by the court that the judicial decisions need to be given a final shape and hence can’t be reopened once a decision has been passed. Its basic purpose is to ensure that some extent of finality is maintained in the decisions. For this Doctrine to apply, it is also very important to ensure that the matters in issue in both the courts are exactly the same.

Therefore, both Res-Sub Judice and Res Judicata go hand in hand. For both the Doctrines to apply, there are same set of conditions that need to be fulfilled which are going to be explained in the next section.

Conditions for the Doctrine of Res Sub Judice

The Doctrine of Res Sub Judice is to be applied only in some specific circumstances so that it is not excessively misused to bring a stay in trial of significantly different cases. The essentials that need to be fulfilled are as follows:

1) Must be a civil suit

The Doctrine of Res Sub Judice applies in only those situations where the civil suits have been instituted in both the courts. It doesn’t take into consideration any criminal case. In the Case of Hansraj Gupta and Others v. Dehradun Mussoorrie Electric Tramway Co Ltd (1932)[7], it was declared by the court that a suit is a proceeding that is initiated by the filing of a plaint by the aggrieved party or the Plaintiff. In response, the party against whom the plaint is filed i.e. the Defendant would need to file a written statement.

In another case of Inderpal Singh Hassanwalia v. Bir Tibbtan Woollen Mills (1973)[8], the petitioner and the respondents had entered into a contract for the sale of blankets and woollen textiles on which the respondents were to get the commission for being the agents. However, it was alleged by the Petitioner that the Respondents failed to perform their duties hence breaching the contract. However, it was specified in the contract that the dispute would be settled through Arbitration. Therefore, the Delhi High Court in this case declared that it won’t constitute a civil suit and hence the provisions of Section 10 of Code of Civil Procedure won’t apply.

2) Cases must be filed at different times

The two suits that have exactly the same matters in issue must be filed at different times in the courts of Concurrent Jurisdiction. One suit must be initially instituted and the other must be instituted subsequently. The term ‘Concurrent Jurisdiction’ means that the Courts in which the same case has been instituted should be competent to have the necessary and same jurisdiction. The parties to the two suits should also be the same with only the possible change in the party being the Plaintiff or the Defendant.

3) Matters in issue must be directly and substantially similar

This essentially means that all the matters in issue in both the cases should be exactly the same. There should be no matter as such in any of the suit that should differ from the other suit that has been filed. They should completely overlap. If this is not the case, then a stay can’t be imposed upon the trial in the subsequent court using the Doctrine of Res Sub Judice. Further, the decision in the court where the trial was initially instituted will also not be binding as Res Judicata on the subsequent court. The words ‘directly’ and ‘substantially’ mean without any intervention and essentially respectively.

In the case of Ragho Prasad Gupta v. Shri Krishna Poddar (1969)[9], the Supreme Court had further declared that since in the subsequent suit the matters in issue were completely different from the suit that was instituted initially, the Doctrine of Res Sub Judice as well as Res Judicata will not apply. Further, once a decree is passed that was an arbitral award, the case can’t be taken to the court concerning the same matter and both the parties are bound by it.

4) Not Applicable in Foreign Suits

The section 10 of the Code of Civil Procedure clearly states that there is no restriction on the Indian Courts to not proceed towards the trial of a case that has already been instituted in a court of foreign country. In such a situation, two cases that even have similar matters in issue could be heard in different courts simultaneously that are based in two different countries.

Illustration: Suppose there was a conflict between two persons who belonged two different countries say country A and B. The suit is first instituted in Country A by its citizen on a given date. However, the other person files a suit for the same matter in country B. Now in such a case, the countries in which the suit has been filed are different. Therefore, a stay can’t be imposed on the trial that is being conducted in Country B and the courts in both the countries can hear the same case simultaneously. Therefore, the Doctrine of Res Sub Judice will not apply in such similar situations.

5) Suit must be pending

The suit should be pending in the Court in which it was initially instituted while it has also been filed in another court of concurrent jurisdiction. In only that circumstance a stay would be imposed upon the proceeding in the court in which the suit had been subsequently instituted. If the case has already been decided, then it would be directly binding on both the parties.

These are some of the essential elements that are required to be fulfilled for the Doctrine of Res Sub Judice to be held applicable on the two cases that have been filed in the different courts. If these conditions are not fulfilled, a stay can’t be imposed upon the proceedings of the court where the suit was subsequently instituted.

Objectives of Section 10

The major reason or the objective for which this doctrine was included in the Section 10 of the Civil Procedure Code is to ensure smooth functioning of the Courts in the country. The Doctrine of Res Sub Judice proves to be beneficial to both the Courts as well as the parties. It helps to achieve the following objectives:

1. The Doctrine helps in reducing the multiplicity and the overlapping of cases in the courts at the same level hence substantially reducing their workload.
2. When a suit would be filed in two courts, they might even give contradictory judgements. For example, one court may pass the decree in favour of the petitioner whereas the other court can give the decision in the Respondent’s favour. This would further lead to ambiguities and complexities with respect to the decision. The parties would then need to refer to a higher court which would then further take some time to pass its judgement. Therefore, fair justice would not be provided quickly and unnecessary delays will also arise.
3. From the point of view of the parties, it aims to prevent both the parties from the unnecessary harassment they would be subjected to due to the same case being filed in the multiple courts. They would not be compelled to appear in two parallel litigations that are taking place in the courts that have concurrent jurisdiction.
4. Another purpose that this Doctrine fulfils is to give effect to the Doctrine of Res Judicata. Only when a stay would be imposed upon the trial in the subsequent court, the decision of the court where the suit was initially instituted would be binding on the other court as the Res Judicata. This has been very clearly defined in the Section 11 of the Code of Civil Procedure. Both of these doctrines are closely related with each other with Res Sub Judice being the cause giving effect to the Doctrine of Res Judicata.
5. Lastly this Doctrine ensures proper functioning of the Courts in the country. Unlike several other codes or laws that are open to interpretation, it provides a definite answer to whether the proceedings should be carried out in the courts or not. At the same time, it gives the Court the liberty to decide whether the Doctrine would apply or not in a particular situation and have inherent powers under Section 151 of CPC. At times, as seen in the case of Ragho Prasad Gupta v. Shree Krishna Poddar the matters in issue may vary and in such cases the Courts even have the powers to consolidate the two suits into one.

Therefore, on one hand they provide the Court with a direct and unambiguous set of provisions to ensure that fair and equitable justice is provided to all and on the other, it also provides some liberty to the courts to decide whether a stay should be imposed or not.

Position at the Global Level

At the global level, as stated earlier there is no as such uniform or common Code of Civil Procedure that has been developed due to variations in the court systems that are being followed in the different countries. Yet, for litigation of the cases at an International Level the Civil Procedure for International Litigation was laid down by the Hague Conference.

The Hague Conference on Private International Law is an inter-governmental organization that administers several conventions and protocols. It was founded in 1893 and currently has 90 members with India also being a part of it. Several conventions on Civil Procedure have been formally adopted by it namely the Evidence Convention in 1970 and Service Convention in 1965.

The Evidence Convention provides the guidelines with respect to obtaining some evidence from another country by framing a letter of request and sending it for review to a central authority. The Service Convention on the other side, aims at serving the judicial and the extrajudicial documents to persons based in some other country in civil or commercial matters. Its basic purpose is to reliably and efficiently serve the documents to the parties living or based in any other country so that there is no communication gap and delays in decision making with respect to international commercial matters. There were some of the developments that took place in the 20^th century with respect to the Code of Civil Procedure.

However, the concept of Sub Judice had been developed several years back in the world and has been reflected by Lord Hardwicke and later on in the case of R v. Fisher (1811) [10]also the stance of Sub Judice was stated. While Lord Hardwicke gave his opinion that the concept of Sub Judice was developed primarily to protect the courts from publication of some data from the legal proceedings that is confidential and should be declared once these are over. The growth of print media had made this problem of several opinions being passed with respect to an ongoing case in the court. As a result, any publication that is brought into the public eye for any court proceeding that brings it into a negative light or scandalizes it would amount to a contempt of Court.

This was further even reconciled in the case of R v. Clement (1821)[11], in which the rulings of Lord Hardwicke were reformulated by fusing prejudicing the Jury and prejudicing the Public. The publication could prejudice the minds of the general public regarding that court or the judges in it and hence would strip the courts of their dignity. Therefore, even parliamentary discussion of any issue of a pending case has been prohibited in several countries.

There is a need for the courts to have some reasonable authority over the General Public so that all the people could be treated equally in the eyes of law stated under Article 14 of the Indian Constitution. As a result, the concept of Sub Judice was also included under the Constitution and like several other countries such as England, Australia and New Zealand, India also introduced the Contempt of Court Act to ensure that the dignity of the courts is maintained when a case is still under investigation or Sub Judice.

The Doctrine of Res Sub Judice is also majorly followed in all the Democratic Countries that have adopted the concept of Contempt of Court in the situation of ‘Sub Judice’ in any given court. Therefore, it can be stated that this Doctrine has been widely adopted internationally and has developed gradually over the years with the concept of Sub Judice coming up first. Almost all Democratic Countries have realized it’s importance in the efficient functioning of the Courts and by large the Judicial System in their country.

It remains to be seen how it is further going to play a significant role in the reformation of International Judicial System worldwide. However, it is expected that the standards are only going to rise in the long run.

Conclusion

The Doctrine of Res Sub Judice has been adopted in a lot many countries worldwide and plays a very important role in ensuring proper functioning of the Courts. It not only reduces the workload of the Courts but also ensures that one case is heard by one court only to provide justice to the parties by avoiding contradictory judgements. Yet, for this Doctrine to be applicable there are certain conditions or essentials that are required to be fulfilled as stated in the previous sections.

This Doctrine has also been adopted by a lot many democratic countries. Several developments have also been made internationally in the Civil Procedure Codes to improve litigation in the international dispute that may arise. The concept of Contempt of Court was also derived after the term sub judice came into prominence. Many countries have introduced laws making contempt of court a punishable offence including India.

In India, there had been some ambiguity with respect to the term ‘Matters in Issue’ initially but that was also taken care of by stating that all the facts relevant to both the cases should be substantially the same for this doctrine to apply. However, since the Court in which the suit is initially instituted doesn’t have the power to impose a stay, it may happen that the case even if filed in the other court might not come to anyone’ knowledge except the two parties that are involved. As a result, certain undesirable situations may arise.

Despite all the advantages that the Doctrine of Res Sub Judice has, there is still a need to widen its scope so that the courts don’t enjoy unregulated and excessive powers under Section 151 of the Code of Civil Procedure. It has played a vital role till now in ensuring efficient functioning of the Courts by reducing the unnecessary delays and expenses that might be faced due to two parallel litigations being conducted in two different courts. It remains to be seen how it will be reformed to further improve the existing Judicial System in India.

References

1. Civil Revision No 998 of 2011 accessed from Indiankanoon.org https://indiankanoon.org/doc/96148201/

2. Official Receiver of Coimbatore v Palaniswamy,1925 88 Ind Cas 934 (India)

3. Anurag and Co and Anr v Additional District Judge and Others (2006), AIR 2006 Raj 119 (India)

4. Chitivalasa Jute Mills v Jaypee Rewa Cement, (2004) AIR 2004 SC 1687 (India)

5. Sheopat Rai v Warak Chand (1919), 50 Ind Cas 90 (India)

6. Satya Charan v Dev Rajan, (1962) AIR 1962 SC 41, (India)

7. Hansraj Gupta and Others v Dehradun Mussoorrie Electric Tramway Co Ltd (1932), AIR 1932 PC 240, (India)

8. Inderpal Singh Hassanwalia v Bir Tibbtan Woollen Mills (1973), AIR 1974 Delhi 95 (India)

9. Ragho Prasad Gupta v Shri Krishna Poddar, (1965) AIR 1969 SC 316 (India)

10. R. v. Fisher (1811), 2 Camp. 563

11. R v Clement (1821), 4B. & Ald.218

12. Umar Farooq Tipu, Doctrine of Res Sub Judice and Res Judicata in CPC 1908, SSRN.com published on 18^th October 2020  https://ssrn.com/abstract=3714151    

13. Galia Shneebaum and Shai Lavi, The Riddle of Sub-Judice and the Modern Law of Contempt, papers.ssrn.com published on 24^th October 2017 and last revised on 1^st November

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3057546

14. Smt. R. Shanthi Sree, Paper Presentation on Res Sub Judice and Res Judicata, 3^rd Workshop in the District Magistrate Court published on the website Districts.ecourts.gov.in https://districts.ecourts.gov.in/sites/default/files/3rdworkshoppdmcourt.pdf

15. The Code of Civil Procedure, 1908 bare legislation, Act No 5 of 1908, Legislative.gov.in, published on 2^nd May 2021 https://legislative.gov.in/sites/default/files/A1908-05.pdf

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