ABSTRACT This This Researc Research h paper paper attempt attemptss evalua evaluatio tion n of secti section on – 10 of the the Civi Civill Proc Proced edur uree Code Code.. From From the the Brit Britis ish h Colo Coloni nial al past, past, Indi Indiaa has has inherited a The study is ased on secondary data in form of relevant le!islations, le!islations, policy " ud!et documents and court #ud!ments. #ud!ments.
SECTION – 10 RES SUB JUDICE
Gaurav Shukla Mayank Bakliwal Rhea Ghanshani Rutvik Shukla Karishma Singh CIVIL PROCEDURE CODE
CIVIL PROCEDURE CODE
SECTION – 10 RES SUB JUDICE PROJECT ASSIGNMEN ASSIGNMENT T BBA. L.L.B. (2015-16)
SUBMITTED BY: GAURAV GA URAV S SU!L U!LA A
MAYAN! MAY AN! BA! BA!LI LI"A "AL L
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REA GANSANI
RUTVI! SU!LA
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!ARISMA SING (ROLL NO.: A05%)
SUBMITTED TO: P&'. SRI!ANT AITAL (P&'**'&)
$%& 10, '01( +++++++++++++++++++++++++++++++++++++++++++++++++++++ ++++++++++++++++++++++++++ +++++++++++++++++++++++++++ )*+$) -%R) $/- $/- )C//2 /F 2%3 2%3, *I2 P%R2 435 $6$B%I7800089. R$%R+):
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TABLE O CONTENTS %reviations
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Tale of cases < statutes
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1. C/ C/&& 1: I&' I &'34 34' ' 1.1.. $ea 1.1 $eanin nin! ! 1.'. volution < Bac>!round 1.;. )cope of the topic 1.8. )cheme of the topic conte?t 2. C/& 2: R*/& M'3'7'89 2.1. Relevance of the topic 2.2. / / #ect of the study Reesearch Auestions< ypothesis 2.$. R 2iimitation of the Research 2.%. 2 2.5. ) )eecondary )ources of data $. C/& $: L8/7 A/79** ;.1. )tudy of various provisions under the code ;.'. Relevant le!al< Criminal odies ;.;. Present le!al frameor> %. C/& %: R'7 ' J43/&9 8.1. 2andmar> cases 8.'. Principle set out y the #udiciary 5. C/& 5: C'/&/; S439 =.1. Res )u udice and Res udicata =.'. Doctrine of Res )u udice in other countries 6. C/& 6: C'74*' < S488*'* (.1. )tudents findin!s (.'. )u!!estions (.;. Draac>s in the le!al frameor>
0= 0= 0( 0( 0( 0@ 0@ 0@ 0 0 0 09 09 1' 1' 18 18 1= 1@ 1@ 1@ 19 19 19 '0
Bilio!raphy " References
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ABBREVIATIONS • • • • • • • • • • • • •
% IR TC. E/*T.: C -/. /R). )C )CC )C. )CR )6PR% 6<) 333
: %22 I-DI% RP/RTR : %-D /TR TI-E) E/*R-$-T : IE C/6RT : -6$BR : /TR) : )6PR$ C/6RT : )6PR$ C/6RT C%)) : )CTI/: )6PR$ C/6RT RP/RTR : %) )T%TD %R2IR : 6-DR )CTI/: 3/R2D 3ID 3B
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TABLE O CASES •
•
• • • • • •
scorts Const. Auipments 2td. v. %ction Const. Auipments 2td. 1999 PTC ;( 4Del5 -ati -ation onal al Inst Instit itut utee of $edi $edica call eal ealth th and and -eur -euro o )cie )cienc nces es v. C Para Parame mesh sha ara ra %IR '00= '00= )C '8' '8' Indian Ban> v. $aharashtra )tate Cooperative $ar>etin! Federation 2td. %IR 199 )C 19=' arish Chandra v. Trilo>i )in!h %IR 19=@ )C 888 %run Eeneral Industries v. Rishah $anufacterers Pvt. 2td. %IR 19@' Cal. 1' Indian Ban> v. $aharashtra )tate Cooperative $ar>etin! Federation 2td. %IR 199 )C 19=' Pu>hra# D. ain v. E. Eopala>rishna %IR '008 )C ;=08 $anohar 2al v. )eth iralal %IR 19(' )C ='@
TABLE O STATUTES
• •
Civil Procedure Code, 190 Indian vidence %ct, 1@'
SECTIONS
PROVISION IN TE CIVIL PROCEDURE CODE
)ec. 10
)tay of )uits
)ec. 11
Res udicata
)ec. 1=1 )avin! of inherent poers of Court
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C/& 1: I&'34'
T
he first provisions provisions related to avoidin! avoidin! multiplicity multiplicity of suit starts ith the provision provision of the concept of Res )u udice as under:
S' 10 of the Civil Procedure Code, 190 spea>s aout =S/9 ' S4>
-o Court shall proceed ith the trial of any suit in hich the matter in issue is also directly and sustantially in issue in a previously instituted suit eteen the same parties, or eteen parties under hom they or any of them claim liti!atin! under under the same title here such suit is pendin! in the same or any other Court in India havin! #urisdiction to !rant the relief claimed, or in any Court eyond the limits of India estalished or continued y the Central Eovernment and havin! li>e #urisdiction, or efore the )upreme Court. E?7//' 7 The pendency of a suit in a forei!n Court does not preclude the Courts in India from
tryin! a suit founded on the same cause of action.
%s the headin! of the section says Gstay of suit, means no court should proceed ith the trial of any suit in hich the matter in issue is directly and sustantially in issue ith the previously instituted suit eteen the same parties and the court efore hich the previously instituted suit is pendin! is competent to !rant the relief sou!ht.
MEANING R* S4@ J43
)u udice in 2atin means H6nder ud!ment. It denotes that a matter or case is ein! considered considered y Court or ud!e. 3hen 3hen to or more cases are filed eteen the same parties on the same su#ect matter, in to or more different Courts, the competent court has poer to H)tay Proceedin!s of another Court. In India, this concept is encapsulated in ).10 of Civil Procedure Code.
R* J43//
Res Res udi udicat cataa in 2ati 2atin n mean meanss Ha matte matterr 4alre 4already ady55 #ud! #ud!ed ed. . It is also also calle called d as Claim Claim Preclusion. It is a common la practice meant to ar re7liti!ation of cases eteen the same parties in
the
court.
% case in hich there has een a final #ud!ment and is no lon!er su#ect to appeal, the doctrine of RES SUB JUDICE , 5 ,
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Res udicata ars continued liti!ation of such matter eteen the same parties. Thus in case of Res udicata, the matter cannot e raised a!ain, either in the same court or in a different court.
EVOLUTION The doctrine of res su #udice, in its essence, has an ancient history, althou!h it is difficult to say definitively hether or not the doctrine as it stands no. 6nderstood in the distant past y oth indu layers and $uslim #urists, it as >non to ancient anci ent indu 2a as HPurva -yaya or Hformer Hformer #ud!me #ud!ment nt.. 6nder 6nder Roman Roman 2a, 2a, it as reco!n reco!niJe iJed d y the doctrin doctrinee of e?cepti e?ception on rei #udicatae hich also meant Hprevious #ud!ment. In order for the ar of res su #udice to e applicale, it must e shon that the cause of action in oth the suits is the same as ell as that the plaintiff had an opportunity opportunity to !et the relief that is no ein! claimed in the suseAuent suit, in the former proceedin! itself.
SCOPE O TE TOPIC ).10 deals ith the concept of Res )u udice. The o#ect of this section is to prevent Courts of concurrent #urisdiction from simultaneously, tryin! to parallel cases, in respect of same matter in issue. The to fold o#ects are: 1. %void astin! astin! Court Court Reso Resourc urces. es. '. %void Confli Conflictin ctin! ! deci decisio sions. ns. ).11 deals ith the concept of Res udicata. Res udicata aims to prevent: • • • •
In#ustice to the parties of a case that has een supposedly concluded. 6nnecessary aste of Court resources. Prevent $ultiplyin! of #ud!ments. Recovery of dama!es from the defendant tice for the same in#ury.
SCEME O TE TOPIC CONTENT The aove topic deals ith a !eneral introduction to the topic and suseAuently the further topics deal ith the rest of the chapters of the pro#ect. Chapter ' of the pro#ect deals ith the le!al analysis here e have all the le!al provisions prescried y the la and also the le!al and constitutional provisions of the same. Chapter ; deals ith the role of the #udiciary ith respect to )ection 10 of CPC and some important landmar> #ud!ments relatin! to the same topic. Chapter 8 of the pro#ect !ives a rief vie relatin! to the comparisons to different topics and the position of RES SUB JUDICE , 6 ,
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similar la in different countries of the orld. Chapter = consists of the conclusion hich !ives a summary of the entire pro#ect and also includes the personal findin!s, opinions and su!!estions of the researchers.
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C/& 2: R*/& M'3'7'89 The research methodolo!y used for the present research paper is traditional Doctrinal research method. There are !enerally to methods of carryin! out a research viJ. primary and secondary. Primary method is a method in hich facts and data are collected on first hand asis directly y the researcher hoever in secondary method the researcher does an indirect research y conductin! a research on some other researchers findin!s. ence the method adopted for this pro#ect has een a secondary method of research as most of the information can e sou!ht form the availale literature y referrin! oo>s, articles, #ournals, esites etc.
RELEVANCE RELEVA NCE O TE TOPIC
/ften people confuse the concepts of res su #udice and res #udicata. Res su #udice is discussed in ). 10 and applies to a the date of institution of suit. It is matter pendin! #udicial enAuiry. ). ). 11 of the CPC and is a matter ad#udicated upon and applies to the date of ad#udication. Res su #udice stays the latter suit instituted in court hich has the same matter directly and sustantially in issue in the previous suit. Res #udicata ars the trial of a suit in hich the matter directly and sustantially in issue has already een ad#udicated upon in a previous suit.
OBJECT O TE STUDY
1. To do an in depth depth analysis analysis of the the concept concept of res su su #udice and and the !eneral !eneral rule assi!ned assi!ned to to that. '. The The main main o#ec o#ectiv tivee of this pro#ect pro#ect is to ascerta ascertain in the mean meanin in! ! and and impo importa rtanc ncee of the doctrine of res su #udice. ;. %lso, it is to as as ascertain that that ho much much it is applicale applicale in the the le!al areas areas li>e Income, Income, Ta? Ta? proceedin!s, Pulic Interest 2iti!ation, 3rit 3rit Proceedin!s etc. 8. To trace the source and development of the doctrine in the Indian le!al system. =. To find out out the poer of courts courts in interpretati interpretation on of cases involvi involvin! n! this section. section. (. To identify identify the principles principles and provisi provisions ons adopted adopted y the courts courts in India India in relation relation to ).10 of CPC. @. To study the Civil Civil provisions provisions relatin! relatin! to )tay )tay of )uits. )uits. RES SUB JUDICE , # ,
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. To study study these provisio provisions ns in the present present le!al le!al frameor> frameor> and to e?amine e?amine the issues and challen!es faced y it.
RESEARC UESTIONS YPOTESIS
The hypothesis hypothesis of the pro#ect report report is to find out the scope of su #udice cases and hile the cases are pendin!, hat procedure are folloed and the ho the comes to a conclusion in its present state.
LIMITATIONS O TE RESEARC
1. %lthou!h %lthou!h the the pro#ect has has reached its its aims, For the the sa>e of convenien convenience ce and for detail detail study, study, the the resear research cher er has has limi limited ted the the pres presen entt topi topicc to the the aspec aspectt from from the the Indi Indian an pros pros and and #ud!ments !iven y the Indian #udiciary #udiciary re!ardin! le!islative actions up to anuary '018. '. Difficulty Difficulty in findin! findin! the primary primary sources sources of data. ;. )cope )cope of the research research is limited limited to #uristi #uristicc ritin!s, ritin!s, precede precedents nts,, vies of differen differentt #ud!es #ud!es and articles.
SECONDARY SOURCES O DATA DATA The hole pro#ect is made ith the use of secondary source. The folloin! secondary sources of data have een used in the pro#ect: 1. $anupatra '. 3est 2a 2a ;. astor 8. -es -espa pape perr arti articl cles es =. uri urist stic ic rit ritin in!s !s (. %ll %ll Ind India ia repo report rter er @. 2a #o #ournals als . Preceden dents
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C/& $: L8/7 A/79** The doctrine of res su #udice aims to prevent courts of concurrent #urisdiction from simultaneously entertainin! and ad#udicatin! upon to parallel liti!ations ith respect to the same cause of action, same su#ect matter and same relief claimed
.
'& E?/7: 3ife % filed a suit for separation of con#u!al life and custody of minor child
a!ainst husand B. )useAuently husand B claimed custody of minor child y filin! another suit a!ainst ife B. The second suit liale to stay under )ec. 10 of CPC, 190. But the prolem arises hen part of the su#ect matter is common to previously instituted suit and suseAuently instituted suit. In case the %ppellate %ppellate Division Division that only one plot as common common in to suits, ut that as not considered as a !round for stay and it as held that the to suits should e tried analo!ously.
STUDY O VARIOUS PROVISIONS UNDER TE CODE The Code provides rules for the civil court in respect of the doctrine of res su #udice. This rule applies to trial of a suit not the institution thereof. -o Court shall proceed ith the trial of any suit in hich the matter in issue is also directly and sustantially in issue in a previously instituted suit eteen the same parties, or eteen parties under hom they or any of them claim liti!atin! under the same title here such suit is pendin! in the same or any other Court in India havin! #urisdiction to !rant the relief claimed, or in any Court eyond the limits estalished or continued y the Code and havin! li>e li>e #urisdiction, or efore the )upreme Court. 1
Therefore Therefore civil court should should not proceed ith the the trial of any suit in hich the matter matter in issue is directly and sustantially sustantially in issue in a previously previously instituted instituted suit eteen eteen the same parties and the court efore hich the previously instituted suit is pendin! is competent to !rant the relief sou!ht.'
1 ). 10 of the CPC, 190. ' Indian Ban> *s. $aharashtra )tate Cop. $ar>etin! Federation 2td, %IR %IR 199 4)C5 19=' RES SUB JUDICE , 10 ,
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The stay must e of of the latter suit and not of the earlier suit eteen the same p parties. arties. ; The ord suit includes an appeal, ut it does not include an application for leave to appeal. 8
; )achindra vs. Royani, @D2R 19, %dul *s. %dul, %dul, 88 D2R (01. 8 )ami *s. )iris, = D2R 1@= RES SUB JUDICE , 11 ,
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CONDITIONS O RES SUB-JUDICE
In order to attract the application of this section it is necessary that the folloin! conditions are fulfilled: 1. There must must e to suits suits one previously previously instituted instituted and and the other suseAu suseAuently ently institute instituted. d. '. The matter matter in issue in the suseAue suseAuent nt suit must e directly directly and sustan sustantial tially ly in issue in the previous suit. ;. Both the the suits suits must e e eteen eteen the same parties parties or their represen representatives tatives 8. The previously previously institute instituted d suit must e pendin! pendin! in the the same court in hich hich the suseAuen suseAuentt suit is rou!ht or in any other court in Ban!ladesh or in any court eyond the limits of Ban!ladesh estalished or continued y the Eovernment or efore the supreme court. =. The court court in hich the previou previouss suit is institu instituted ted must have have #urisd #urisdicti iction on to !rant the relief relief claimed in the suseAuent suit. (. )uch parties parties must must e liti!atin liti!atin! ! under under the same same title in in oth the suits suits..= If these essential conditions are fulfilled, the suseAuent suit must e stayed y the court here it is pendin! It must e rememered that the institution of the suseAuent suit is not arred ut its trial only. The final decision of the former suit shall operate as res7#udicata in the suseAuent suit. But prolem arises hen part of the su#ect matter is common to previously instituted suit and suseAuently instituted suit.
"EN NOT APPLLIED
Court cannot cannot apply this this section here point point at issues are distinct and diff different, erent,( or even here there are some issues in common common and others others are different issues. issues.@ This section is also not applicale eteen the suits here althou!h the parties are same, ut the issues are not the same. oever, this section can only e applied if the folloin! condition are satisfied. These are: 1. '. ;. 8.
To To suits – Previously Previously Institute Instituted d and )useAu )useAuently ently Institute Instituted. d. $atter in issue issue in suseAu suseAuent ent suit – directly and sustantial sustantially ly in issue issue in previous previous suit. suit. Both suits eteen eteen same same parties parties or or their their representa representatives. tives. Previous Previous suit suit must e e pendin! pendin! in same or in any other court court in in India. India.
=C.+. Ta>ani, Civil Procedure, (th dition, astern Boo> Company, Company, '009, p!7(= (%limmllah *s. )hei>h. 8;D2 R22; @ %dur *s. %srafun, ;@ D2R '@1. $anJar *s. Rema. ;; DR2 89 RES SUB JUDICE , 12 ,
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=. The The cour courtt deal dealin in! ! ith ith prev previo ious usly ly inst instit itut uted ed suit suit comp compet eten entt to !ran !rantt reli relief ef clai claime med d in suseAuent suit. (. Parties liti!atin! liti!atin! under under the same same titles titles in oth oth the the suit. suit.
The ord Gshall in the section ma>es it mandatory and the moment court finds that the aove conditions are satisfied, the court ill not proceed ith the suseAuently instituted suit, that is, the court ill stay ith the proceedin! of suseAuent suit.
PURPOSES O RES SUB JUDICE
The )ec. 10 intends to protect a person from multiplicity of proceedin!s and to avoid a conflict of decisions. It also protects the liti!ant people from unnecessary harassment. It also aims to avoid inconvenience inconvenience to the parties and !ives effect to the rule of res #udicata.9
INERENT PO"ER TO STAY
Court may use its inherent poer to stay of suit. %lthou!h the provision of )ec. 10 is mandatory, ut this provision has not ta>en aay the courts inherent poer under )ec. 1=1 so as to stay the proceedin!s on the facts and circumstances of a !iven case to secure the ends of #ustice here section 10 is not applicale. 10 Therefore court may use its inherent poer to secure the ends of #ustice hen section – 10 is not applicale, even to prevent prevent ause of process of court, court may stay former suit y applyin! its inherent poer .11
oever, in the li!ht of the e?planation to section 10, there is no ar on the poer of an Indian court to try a suseAuently instituted suit if the previously instituted suit is pendin! in the pendin! in a forei!n court.
It is further important to rememer that a decree passed in contravention of section 10 is not a nullity, and therefore, cannot e disre!arded in e?ecution proceedin!s. %!ain, as stated aove, it is 9).P.%7 9).P.%7 %nnamalay %nnamalay Chetty vs. B.%. Thornlill %IR 19;1 PC '(; 10)uraiya *s %limullah. '8 D2R 1;;, %yat %yat %li Bhuyan *s. anata Ban>, 80 D2R =(K Bashirullah *s. %dul Bari, '1 D2R 1; 11 Ram *s. Devidayal, %IR 19=8 Bom. 1@(. RES SUB JUDICE , 1$ ,
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only the trial and not the institution of the suseAuent suit hich is arred under this section. Thus, it lays don a rule of procedure, pure and simple, hich can e aived y a party. ence, if the parties aive their ri!ht and e?pressly as> the court to proceed ith the suseAuent suit, they cannot afterards challen!e the validity of the suseAuent proceedin!s.
SUIT PENDING IN OREIGN COURT
The pendency of a suit in a forei!n court does not preclude the court in Ban!ladesh from tryin tryin! ! a suit suit foun founde ded d on the the same same caus causee of actio action. n. )o the the cour courtt of Ban! Ban!lad ladesh esh may try a suseAuently instituted suit if the previously instituted suit is pendin! in a forei!n court. 1'
RELEVANT LEGAL CRIMINAL BODIES %s the headin! of the section says Gstay of suit, means no court should proceed ith the trial of any suit in hich the matter in issue is directly and sustantially in issue ith the previously instituted suit eteen the same parties and the court efore hich the previously instituted suit is pendin! is competent to !rant the relief sou!ht.
The The purp purpos osee of the the sect sectio ion n is to rin rin! ! fina finali lity ty in the the #ud! #ud!me ment nt and and to avoi avoid d the the contradictory decision y the to different court, as there is a very !ood possiility that in case hen matter is simultaneously ein! decided y different courts of concurrent #urisdiction, the courts may come up ith different decisions and then it ill e very difficult to finaliJe hich decisions to e aided y.
In simple ord, the very authority of la ill come at sta>e, there ill e no finality of #ud!ment. )o, ith the o#ective to prevent courts of concurrent c oncurrent #urisdiction from simultaneously entertainin! entertainin! and ad#udicatin! ad#udicatin! upon to parallel liti!ations liti!ations in respect of same cause of action, the same su#ect7matter and the same relief, this section is provided in the Code. oever, this rule only applies to trial of a suit and not the institution thereof. %lthou!h, it does not preclude a court from passin! interim orders, ut it applies to appeals and revisions.
1'?planation of ). 10 of the CPC, 190 RES SUB JUDICE , 1% ,
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The policy of la is to confine a plaintiff to one liti!ation so as to protect a person from multiplicity of proceedin!s and also to avoid a conflict of decisions y courts in respect of same relief.
PRESENT LEGAL RAME"OR! C'*&4; R* J43//
Rule of constructive res #udicata is en!rafted under ?planation I* of )ection 11 of the Code. It is artificial form of res #udicata and provides that if a plea could have een ta>en y a party in a proceedin! eteen him and his opponent, he should s hould not e permitted per mitted to ta>e that plea a!ainst the same party in a suseAuent proceedin! ith reference to the same su#ect7matter. That clearly is opposed to considerations of pulic policy on hich the doctrine of res #udicata is ased and ould mean harassment and hardship to the opponent. Besides, if such a course is alloed to e adopted, the doctrine of finality of #ud!ments pronounced y the courts ould also e materially affected.
Thus, it helps in raisin! the ar of res #udicata y suitaly construin! the !eneral principle of suduin! a cantan>erous liti!ant. That is hy this rule is called constructive res #udicata, hich, in reality, is an aspect or amplification of the !eneral principle of res #udicata.
R* J43// /3 P4@7 I&* I&* L8/'
ven in a pulic interest liti!ation procedural la is applicale thou!h not strictly. ence, the principle of res #udicata is also applicale. 3here the prior pulic interest liti!ation relates tom ille!al minin!, suseAuent pulic interest liti!ation to protect environment is not arred.
"& P'* /3 R* J43//
In $.).$ )harma *. Dr. )hree +rishna, %IR 19(0 )C 11(, for the first time )upreme Court held that the !eneral principle principle of res #udicata applies even to rit petition petition filed under %rticle %rticle ;' of the Constitution of India. Thus, once the petition filed under %rticle ;' is dismissed y the court, suseAuent petition is arred.
)imilarly, a rit petition filed y a party under %rticle ''( is considered on merit as a contested matter and is dismissed, dismiss ed, the decision thus pronounced ould continue to ind unless it is otherise
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modi modifie fied d or reve reverse rsed d in appe appeal al or in othe otherr appr approp opria riate te proc procee eedi din! n!ss perm permiss issi ile le unde underr the the Constitution.
In the leadin! case of Daryao *. )tate of 6.P., %IR 19(1 )C 18=@, the )upreme Court has placed the doctrine of res udicata on a hi!her footin!, considerin! and treatin! the indin! character of the #ud!ments pronounced y competent courts as an essential part of the rule of la.
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C/& $: R'7 ' J43/&9 The #udiciary plays a very important role in settin! the principles of a concept in la. /ver the the years years the the #udi #udici ciary ary arou around nd the the orl orld d has has pronounced many decisions in cases relatin! to Civi Civill la la. The The frame framers rs had had made made the the la, la, ut ut certain
aspects
are
su#ect
to
#udicial
interpretatio interpretation. n. )ome landmar> landmar> cases and the ratio decidendi adopted thereof have helped to develop and and upda update te the the la las conc concer erni nin n! Civ Civil and and Crim Crimin inal al Proc Procee eedi din! n!s. s. % fe fe impo import rtan antt case case studies are discussed in detail elo.
LANDMAR! CASES E*'&* C'*. E4* L3. ;. A' C'*. E4* L3. 1 PTC $6 (D7)
/*: The defendant had filed for stay of present suit, an application u
the matter in controversy controversy is pendin! pendin! in amshedpur amshedpur Court also. This as opposed opposed y plaintiff plaintiff on !round that, the defendants had raised issue of #urisdiction of amshedpur Court to entertain same suitK and that application u
of #urisdiction as ithdran in amshedpur Court.
J438: Court held that the conditions reAuisite to invo>e ).10 CPC are: • • •
$atter in issue in oth the suits to e sustantially the same. )uit to e eteen the same parties or parties liti!atin! under them. Prev Previo ious usly ly inst institu ituted ted suit suit to e in the the same same Cour Courtt or a diff differ eren entt Cour Court, t, hic hich h has has #urisdiction to !rant the relief as>ed.
There is nothin! to the effect that defendant should not Auestion the competency of previously Court in the previously instituted suit, and there remains the fact that the plaintiff in their defense a!ainst ).10 CPC, had not stated the amshedpur Court is competent. Thus relief as !ranted to the defendant.
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N/'/7 I*4 ' M3/7 /7 /3 N4&' S* ;. C P/&/*F/&/ AIR 2005 SC 2%2 /*: The respondent as a )enior Pharmacist at the institute, in this case ein! the appellant. The appellant
sued the respondent for misappropriation of dru!s to the tune of almost Rupees one la>h ei!hty thousand. For the same, an enAuiry officer as appointed, ho sumitted a detailed report. %fter !oin! throu!h the report, the director of the institute removed the respondent from service. Bein! a!!rieved, the respondent moved the 2aor Court, hich set aside the removal. The appellant ein! a!!rieved y the 2aor Courts decision filed a rit re!ardin! the same. /n the other hand, the appellant also sued the respondent in the Civil Court to recover the dama!es. J438: The C oserved that since the rit petition filed y the appellant a!ainst the aard of the 2aor
Court as pendin! in the C, and since the C as superior to the Civil Court, it as desirale that the decree of the Civil Court stay. The )C overruled this #ud!ment, since the scope of oth the cases in the 2aor Court as ell as Civil Court ere different, and alloed the appeal.
I3/ B/ ;. M//&/*&/ S/ C''&/; M/&8 3&/' L3. AIR 1# SC 152:
In this case, the )C discussed at len!th hether the ar contained contained in section 10 applies to a summary suit filed under /rder ;@ of the CPC – The ord Gtrial in )ection 10 in the conte?t of summary suit cannot e interpreted to mean the entire proc procee eedi din! n!ss star starti tin! n! ith ith inst instit itut utio ion n of of the the suit suit y lod! lod!in in! ! a pla plain int. t. In a sum summa mary ry suit suit the the Gtri Gtrial al real really ly e!i e!ins ns after the Court or the #ud!e !rants leave to the defendant to contest the suit. Therefore, the Court or the #ud!e dealin! ith the summary suit can proceed up to the sta!e of hearin! hearin! the summons summons for #ud!ment #ud!ment and passin! the #ud!ment in favor of the plaintiff if: 4a5 The defendant has not applied for leave to defend or if such application has een made and refused or if, 45 The defendant ho is permitted to defend fails to comply ith the conditions on hich leave to defend is !ranted. J438: eld that the o#ect of prohiition in ).10 CPC, is to: • •
Prevent Courts of concurrent urisdiction from simultaneously tryin! to parallel cases. %void %void inconsistent findin!s on the matter in issue. iss ue.
PRINCIPLES SET OUT BY TE JUDICIARY
/&* C/3&/ ;. T&7' S8 AIR 15 SC %%%
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The %pe? Court had held that the ord Gtrial has not een used in its idest sense in this section. oever, oever, the nature and o#ect of the provision, provision, as ell as the conte?t in hich it is used decide hether hether the section shall e construed in a narro sense or its idest sense.
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A&4 G&/7 I34*&* ;. R*/@ M/4/4&&* P;. L3. AIR 12 C/7. 12#
The Calcutta i!h Court held herein that section 10 not only applies to the trial of the suit ut also to all proceedin!s therein.
I3/ B/ ;. M//&/*&/ S/ C''&/; M/&8 3&/' L3. AIR 1# SC 152
The %pe? Court oserved in this case that the course of action that the Court has to follo is not to proc procee eed d ith ith the the Gtri Gtrial al of the the suit suit.. But, But, that that does does not not mean mean that that it cann cannot ot deal deal ith ith the the sus suseA eAue uent nt suit suit anym anymor oree or for any other purpose. It also stated that the ord Gtrial in this section has not een used in its idest sense.
P4&/H D. J/ ;. G. G'/7/&*/ AIR 200% SC $50%
The %pe? Court held in this case that the o#ect of the section is to prevent courts havin! concurrent #uri #urisd sdic icti tion on from from try tryin! in! to to para parall llel el suit suits, s, at the the sam samee tim time, e, ith ith resp respec ectt to to the the same same matt matter er.. This This sect sectio ion n act actss as a mere rule of procedure, and a decree passed in its contravention, is therefore not a nullity.
M/'/& L/7 ;. S &/7/7 AIR 162 SC 52
In this case, the %pe? Court oserved that the provisions of this section are clear, definite and mandatory. The court, in hich a suseAuent suit has een filed, is prohiited from proceedin! ith that suit in certain circumstances. The provisions of section 10 do not ecome inapplicale to the court, even if the prev previo ious usly ly inst instit itut uted ed suit suit as as ve?a ve?ati tiou ouss or is in viol violat atio ion n of the the term termss of a cont contra ract ct..
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C/& %: C'/&/; S439 DIERENCE BET"EEN RES SUB JUDICE AND RES JUDICATA /ften people confuse the concepts of res su #udice and res #udicata. Res su #udice is discussed discussed in ). 10 and applies applies to a date of institution institution of suit. suit. ).11 ).11 of the CPC and is a matter ad#udicated upon and applies to the date of ad#udication. The difference eteen Res7)u #udice and Res7 udicata are as Follos: 7 1. In case of of R* S4@ J43, there must e to suits, one previously instituted here as incase of R*- J43// there must e an end to liti!ation.
'. In ca case of of R* S4@ J43, the matter in issue in oth the suits must e sustantially the same. /n the other hand, the matter directly and sustantially in issue in the suseAuent suit must have een directly and sustantially in issue in the former suit either actually or constructively.
;. In case of R* S4@ J43, the previously instituted suit must e pendin! in the same court in hich the suseAuent suit as rou!ht or in a different court havin! #urisdiction to !rant the relief claimed. /n the contrary, the former suit must have een a suit eteen the same parties or eteen parties under hom they or any of them claim.
8. In ca case, of of R* S4@ J43 , such parties must e liti!atin! in oth the suits under the same title. In case of R* J43// , such parties must have een under the same title in the former suit.
J43, oth =. In ca case of of R* S4@ J43 oth the the suit suitss must must e et eteen een the same same part partie iess or thei their r
representatives. /n the other hand, a final decision of a concrete issue eteen parties.
TE DOCTRINE O RES SUB JUDICE IN OTER COUNTRIES In n!land and 3ales, Ireland, -e Lealand, %ustralia, )outh %frica, Ban!ladesh, India, Pa>ista Pa>istan, n, Canada Canada,, )ri 2an>a 2an>a and Israel Israel it is !eneral !enerally ly consid considered ered inappr inappropr opriate iate to commen commentt RES SUB JUDICE , 21 ,
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pulicly on cases su #udice, hich can e an offence in itself, leadin! to contempt of court proceedin!s. This is particularly true in criminal cases, here pulicly discussin! cases ca ses su #udice may constitute interference ith due process.
In n!lish la, the term as correctly used to descrie material hich ould pre#udice court proceedin!s y pulication efore 191. )u #udice is no irrelevant to #ournalists ecause of the introduction of the Contempt of Court %ct 191. 6nder )ection ' of the %ct, a sustantial ris> of serious pre#udice can only e created y a media report hen proceedin!s are active. Proceedin!s ecome active hen there is an arrest, oral char!e, issue of a arrant, or a summons.
In the 6nited )tates, there are First %mendment concerns aout stiflin! the ri!ht of free speech hich prevent such ti!ht restrictions on comments su #udice. oever, )tate Rules of Professional Conduct !overnin! attorneys often place restrictions on the out7of7court statements an attorney may ma>e re!ardin! an on!oin! case. Furthermore, there are still protections for criminal defendants, and those convicted in an atmosphere of a media circus have had their convictions overturned for a fairer trial.
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C/& 5: C'74*' < S488*' STUDENTS INDINGS •
The researchers found out that there are some asic conditions hich have to fulfill anyay: 1. To To suits suits – Previously Previously Instituted Instituted and and )useAuen )useAuently tly Instituted Instituted '. $atter in issue in suseAu suseAuent ent suit – directly and sustantial sustantially ly in issue issue in previous previous suit suit ;. Both suits eteen eteen same same parties parties or or their their representa representatives tives 8. Previous Previous suit must e e pendin! pendin! in same or in any other court court in India =. The The cour courtt deali dealin! n! ith ith prev previo ious usly ly insti institu tuted ted suit comp compet eten entt to !rant !rant relief relief claim claimed ed in suseAuent suit (. Parties liti!atin! liti!atin! under under the the same same titles titles in oth oth the the suit. suit.
•
The ord Gshall in the section ma>es it mandatory and the moment court finds that the aove conditions are satisfied, the court ill not proceed ith the suseAuently instituted suit, that is, the court ill stay ith the proceedin! of suseAuent suit. The court have inherent poer under section 1=1 of the Code and usin! it, the court may stay or consolidate the proceedin!s, ut it is not mandatory and it depends upon the discretion of the court, hereas if the condition so mentioned is satisfied under section 10, the court has to mandatorily stay the suseAuent suit.
•
oever, in the li!ht of the e?planation to section 10, there is no ar on the poer of an Indian court to try a suseAuently instituted suit if the previously instituted suit is pendin! in the pendin! in a forei!n court.
SUGGESTIONS:
•
The purpose of the section is to rin! finality in the #ud!ment and to avoid the contradictory decision y the to different court, as there is a very !ood possiility that in case hen matter is simultaneou simultaneously sly ein! decided decided y different courts of concurrent concurrent #urisdiction, #urisdiction, the courts may come up ith different decisions and then it ill e very difficult to finaliJe hich decisions to e aided y.
•
The o#ective to prevent courts of concurrent #urisdiction from simultaneously entertainin! and ad#udicatin! upon to parallel liti!ations in respect of same cause of action, the same su#ect7matter and the same relief, this section is provided in the Code. oever, this rule only RES SUB JUDICE , 2$ ,
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applies to trial of a suit and not the institution thereof hich is a aspect hich should e modified.
•
The policy of la is to confine a plaintiff to one liti!ation so as to protect a person from multiplicity of proceedin!s and also to avoid a conflict of decisions y courts in respect of same relief. This still ma>es the court too len!thy and ta>es a lon! duration.
•
The The amou amount nt of clar clarity ity !iven !iven to distr distriu iuti tion on of poe poers rs ete eteen en Cent Centra rall and )tat )tatee !overnments made under the constitution is commendale of a Gsu!!estion for the researchers to !ive. The fact that the pro#ect merely states the provision and does not !o into in depth analysis of appropriateness of the provisions
DRA"BAC!S IN TE LEGAL RAME"OR! •
EloaliJation EloaliJation and inter7connecti inter7connectivity vity in the orld has rou!ht ith itself an increase in trans7 national transactions eteen individuals and corporations. /ften, it so happens that the court e?ercisin! e?ercisin! #urisdiction #urisdiction over the case is different from the one here the relief !ranted is to e e?ecute e?ecuted. d. Theref Therefore ore,, an increas increasee in the numer numer has led to a formida formidale le Auesti Auestion on on the enforcement and e?ecution of a #ud!ment passed y a forei!n court ithin the territory of India.
•
The Indian Civil Procedure Code provides for the e?ecution of decrees and #ud!ments passed y forei!n courts. %lthou!h, %lthou!h, at the time of adoption of of the code no such need to e?ecute forei!n decrees as felt as India as under the dominion of the imperialistic state of Britain.
•
In this modern and !loaliJed orld, the concept of reciprocity has hindered the e?ecution and enforcement of decrees passed y the forei!n courts in India.
•
Diplomatic o#ectives of the Indian Eovernment has cho>ed the Code of Civil Procedure ith unnecessary provision and reAuirements. -on7reco!nition of forei!n territory as a reciprocatin! country has led to failure of appreciatin! the orders and #ud!ments passed y its courts even if it meets the parameters of defined under )ection 1;.
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•
The Indian Eovernment must ensure that certain amendments are made on these fronts such that e?ecution and service of forei!n decrees and documents can e smoother, more cost7 effective and less time consumin!.
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R&* < B@7'8&/9 BOO!S 1. '. ;. 8. =.
Blac>s 2a Dictionary 49th )tandard edition5. %ll India Reporter 4%IR5. Blueoo> 419 thd.5 Citation method. Civil Procedure code ith 2imitation %ct, 19(; y C.+. Ta>ani, Ta>ani, astern Boo> Company. Civil Procedure Code Bare %ct, 6niversal Pulication.
ONLINE ARTICLES < JOURNALS 1. https:<anoon.or!anoon.or!anoon.or!ilno1.com<areactsilno1.com<areacts
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