Res sub Judice

Res sub Judice

Provision as to stay of suits- Res sub Judice

Ever wondered how court makes sure that the suit proceeding before is an exclusive one or not? How does court makes sure that there is no multiplicity of litigations. Since the litigants would be free to file as many suits as they wished on the same subject matter claiming the same relief. And the consequences thereof would have been that the number of suits would have been unlimited without any control or check. The concept of res sub Judice is a solution for all these problems.

Basically the provisions of res sub Judice are provided under Section 10 of the Code of Civil Procedure which provides that a court shall not proceed with the trial of a suit brought before it if the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties and that previous suit is pending for adjudication in the same or any other court in India. The intent of the legislature was to avoid two parallel litigations that are similar in respect of cause of action, subject matter and relief in two courts at the same time, it protects the person from multiplicity of proceedings. It also prevents the courts of concurrent jurisdiction from simultaneously adjudicating upon two parallel litigations in respect of same cause of action[1], same subject matter and same relief. And finally the conflict of decisions by different courts is also mitigated by virtue of the principle of res sub Judice.

The opening words of the section provides that “No court shall proceed with the trial” which makes it apparent that the institution if suit is not barred by this section rather the proceeding, i.e, the trial is barred. At the same time, it is to be kept in mind that the rule of res Sub Judice however applies to appeals and revisions but it does not preclude a court from passing interim orders such as arrest before judgement, attachment before judgement, stay, etc.

There are some conditions which are required for the application of the rule of Res sub Judice. The first and foremost requirement is that there must be two suits. One suit which is previously instituted and other which is subsequently instituted. Secondly the matter in issue in the second suit must be directly and substantially in issue. Matter directly and substantially in issue means that such matter in issue would materially affect the decision of the suit. However, there is no hard and fast rule as to when a matter can be said to be directly in issue and it depends upon the facts and circumstances of each case.[2] In simple words, for the application of Res Sub Judice, the matter in issue should be identical in both suits.

Thirdly, there must be the pendency of the previously instituted suit. Such pendency may be therein the court where the subsequent suit is brought or it may be any other court in India. For the application of Res Sub Judice, pendency is the most essential element. It must also be observed that Section 10 of the Code provides that pendency may also be in any other court beyond the limits of India established or continued by the Central Government or before the Supreme Court.

Fourthly, two suits must be between the same parties. A party is a person whose name appears on the record at the time of the decision. Basically, the persons who have intervened in the suit are known as parties to that suit. Parties may be a plaintiff or a defendant. A party to a suit who is discharged from the suit or who dies pending the suit having his name appeared erroneously on record, or a party whose name has been struck off remains no more a party. The Latin maxim, Res inter alios acta alteri nocere non debet which means that things done between strangers ought not to injure anyone is also in consonance with the principle of res sub Judice. Therefore, when the parties in the subsequent suit are different from the previous suit, there is no Res Sub Judice.

Fifthly, the parties to the suit must be litigating under the same title. Same title means the same capacity.[3] In simple words, title refers to the interest or capacity of a party whether he sues or is sued for himself in his own interest or for himself as representing the interest of another or as representing the interest of others along with himself and it has nothing to do with the particular cause of action on which he sues or is sued. Thereby, the parties litigating under the same title means that the demand should be of the same quality in the second suit as was in the first suit.

Lastly, the sixth condition for the application of principle of Res Sub Judice is that the court trying the previous suit must be competent to grant the relief asked for in the subsequent suit. Therefore the decision of the court of limited jurisdiction ought not to be final and binding on a court of unlimited jurisdiction.[4] The question of competence of the court must be relevant from the date when the subsequent suit would be brought and not when the previous suit was filed.[5] Thus the pendency in the previous suit by the court, not competent to try the subsequent suit, will not operate as Res Sub Judice.

The provisions contained in the Section 10 are exhaustive. Having clear and specific interpretations, the provisions therein shall be considered strictly and mandatorily. The court, henceforth, is bound to stay the proceedings of any proceedings of any suit, having satisfied the conditions laid down under this section. Such proceedings at the risk of repetition must be the one in which the matter in issue is also directly and substantially in issue in a previous suit and between the same parties, having the same title.


[1] Indian Bank v. Maharashtra State Cooperative Marketing Federation Limited AIR 1998 SC 1952

[2] Ramadhar Shrivas v. Bhagwandas (2005) 13 SCC 1

[3] Mahadevappa Somappa v. Dharmappa Sanna AIR 1942 Bom 322

[4] Law Commission’s Fifty-Fourth Report at p. 21

[5] Sheodan Singh v. Daryao Kundan AIR 1966 SC 1332

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