Article on Section 10, Code of Civil Procedure, 1908

The phrase Res Subjudicie is a Latin maxim with means “under judgment”. The purpose of the
same is to prevent multiplicity of proceedings, to restrict the chances of having contradictory
judgments by different courts. This doctrine is codified in section 10 of the Code of Civil
Procedure, which bars the parallel trial of a suit where the matter is pending in a previous
litigation, and has the same cause of action and relief1. Thus, two suit between same parties,
involving same subject-matter and same questions then the subsequent suit should be stayed 2
Section 10 of CPC provides for stay of suit, and reads as follows:

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 1[India] having jurisdiction to grant the relief claimed, or in
any Court beyond the limits of 1[India] established or continued by 2[the Central Government]
3[***] and having like jurisdiction, or before 4[the Supreme Court].

Explanation- The pendency of a suit in a foreign Court does not preclude the Courts in 1[India]
from trying a suit founded on the same cause of action.3

Essential Ingredients of Section 10

 There must be two suits. On instituted previously and the other instituted subsequently.
 Both suits shall be pending in the Courts of India or Courts established outside India
under the authority of the Central Government
 The matter in issue in the previous suit shall be substantially in issue in subsequent suit.
 The Court in which previous suit is instituted must have jurisdiction to grant relief
claimed in the subsequent suit.
 Both the parties must be between the same parties or their representatives
 Both parties must be litigating under the same title

1
Indian Bank v. Maharashtra State Coop. Marketing Federation, AIR 1998 SC 1952
2
Trikamda Jethabhai v. Jivraj Kalianji AIR 1942 Bombay, 314
3
Code of Civil Procedure, 1908 s 10
If these conditions are fulfilled, The Court is empowered to stay the later suit and not the earlier
one4

The conditions necessary for the application of Section 10 are as follows

1. Identical Parties
In order to impose a stay under Section 10, the previously instituted suit must be between the
same parties, or those litigating under the same title.

2. Matter in the issue must be same

For the application of section 10, it is enough to establish that substance of the matter in
controversy in two suits are same. The Identity of reliefs is not necessary for the applicability of
this section.5

3. The suit must be pending

Section 10 gives the power to put stay on proceedings only if previously suit is pending. It is a
duty and responsibility of the defendant to make the court aware about pendency of the former
suit
4. Title must be the same
To apply section 10, the parties must be litigating under the same title under both suits.

5. The court should be one of competent jurisdiction 

Section 10 of CPC is only applied when the previous suit is pending before a competent court. If
it is shown that the suit in question is pending before a court that does not have the jurisdiction to
decide the same, section 10 shall not apply. 6

Further, section 10 shall not apply when issues in suits are distinct and different.7 It is not
necessary for the applicability of Section 10 that all the issues in the prior instituted suit should
also be issued in the later suit. Section 10 of the Civil Procedure Code do not apply to the foreign

4
Dinshaw v. Galstaun, AIR 1927 Bom 245
5
Arumugha Udayar rep. by Power Agent Periyasami v. Lakshmi, AIR 2005 CHN 717
6
Raj Spinning Mills v. A.G. King Ltd. AIR 1954 Punj 113
7
Ambika Sahu v. Sumitra Sahu, AIR 1990 Ori 127
courts. The pendency of a suit before any foreign court does not bar Indian courts to initiate
proceedings on the same cause of action.8

8
Radhey Shyam Agarwal v. Kashinath Vaish, AIR 1960 MP 169.