Section 10 of Code deals with doctrine of res sub judice.

'Res' means a thing or a matter and 'sub judice’ means under consideration or pending
adjudication. It provides that 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 and that the court in which the previous suit is pending is competent to grant
the relief claimed.

Object: Section 10 lays down the rule of res subjudice which prevents the court of concurrent
jurisdiction from simultaneously adjudicating upon two parallel litigations in respect of same
matter between the same parties. Thus, Section 10 is enacted keeping in mind following
objectives:
1. To protect a person from multiplicity of proceedings.
2. To avoid a conflict of decisions by the court of concurrent jurisdiction.
3. To avert the inconvenience to the parties and give effect to the rule of res-judicata
Conditions: For the application of this Section, the following conditions must be fulfilled:

(1) There must be two suits, one previously instituted and the other subsequently instituted.
(2) The matter in issue in both suits must be directly and substantially the same.
(3) Both the suits must be between the same parties or their representatives.
(4) The parties must be litigating under the same title in both the suits.
(5) The Court in which the previous suit is pending must have jurisdiction to grant the relief
claimed in the subsequent suit.
(6) The previously instituted suit must be pending in any of the following Courts-
(a) In the same court in which the subsequent suit is brought; or
(b) Any other court in India; or
(c) Any court beyond the limits of India, but established by the Central Government; or
(d) Before the Supreme Court of India.
The provision of Section 10 is mandatory. As soon as the essential elements are fulfilled the
court cannot proceed with the suit. A previously instituted suit is a suit instituted first in point
of time.
Suit pending in foreign court: Explanation to Section 10 clarifies that there is no bar on the
power of Indian Court to try a subsequent suit if the previously instituted suit is pending in
foreign court.

Test for applicability of Section 10: The test for applicability of Section 10 is whether the
decision in a previously instituted suit would operate as resjudicata in the subsequent suit. If it
is so, the subsequent suit will be stayed [Radha Dev v. Deep Narain, (2003) 11 SC 759]

Inherent power to stay: Even where the provisions of Section 10 do not strictly apply, a civil
court has inherent power under Section 151 to stay a suit to achieve the ends of justice [P. V.
Shetty v. B.S. Girdhar, AIR 1982]. Similarly, court has inherent power to consolidate different
suits in such cases [Indian Bank v. Maharashtra State Coop. Marketing Federation, (1998)
Effect of contravention: A decree passed in contravention of Section 10 is not a nullity and
cannot be disregarded at the stage of execution. It is only the trial and not institution of
subsequent suit which is barred under Section 10. Thus, it only lays down a rule of procedure.
[Pukhraj D. Jain v. G. Gopala Krishna, (2004) 7 SCC 251]

Applicability to interim orders: Section 10 does not bar institution of suits, but it bars trial of
the suit. Since this rule applies to the trial of the suit and not the institution it does not preclude
the courts from passing interim orders such as grant of injunction, appointment of receiver etc.
[Indian Bank v. Maharashtra State Coop. Marketing Federation, (1998) 5 SCC 69].
Res Judicata
Section 11 of the Code incorporates the doctrine of res judicata. It is also called rule of
conclusiveness. 'Res' means dispute or subject matter and 'Judicata' means decided. Thus, res
judicata means matter adjudicated, It means that once the matter is finally decided by the court
no one can reopen it in a subsequent litigation. Under Roman law it is known as cx captio res
judicata which signifies previous or former judgment.

Supreme Court in Satyadhyan Ghosal v. Deorijin Debi, AIR 1960 held that principle of res
judicata is based on the need of giving finality to judicial decisions, Primarily it applies between
past litigation and future litigation.
Section 11 provides that no court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former suit between the
same parties, or between parties under whom they or any of them claim litigating under the
same title, in a court competent to try such subsequent suit or the suit in which such matter
has been subsequently raised, and has been heard and finally decided by such court.

For example, A sues B for possession of certain properties on the basis of a sale deed in his
favour. B impugns the deed as fictitious. The plea is upheld and the suit is dismissed. A
subsequent suit for some other properties on the basis of same sale deed is barred as the issue
about the fictitious nature of the sale deed was actually in issue in the former suit directly and
substantially.
Object: The doctrine of res-judicata is based on the following maxims:

5. Interest Republicac ut sit finis litium- It is in the interest of State that litigation should not
be protracted but finished.
6. Nemo debt cause. bis vexari pro una et eadem causa- No man ought to be vexed twice for
one and the same
7. Resjudicata pro veritate occipitur- A judicial decision must be accepted as correct.

Supreme Court in Lal Chand v. Radha Krishnan, (1977) 2 SCC 88 held that principle of res
judicata is conceived in the larger interest that all litigation must, sooner than later, come to an
end.
Res judicata and rule of law: Supreme Court in Daryao v. State of U.P., AIR, 1961 SC 1457 held
that the res judicata is an essential part of rule of law. Court in this case held that doctrine of
res judicata is equally applicable to the writs under Article 32 and 226 of the Constitution of
India. The basis of res judicata is public policy. It is in the interest of public at large that finality
should be attached to the judgment.

Applicability of res-judicata execution proceedings: Explanation VII to Section 11 specifically

provides that the provision of Section 11 applies to execution proceedings also. This was added
by way amendment by Act 104 of 1976.

Two stages of the same proceeding: The doctrine of res-judicata also applies to different stages
of the same proceeding or suit. If any interlocutory order decides the controversy in part
between the parties, such decision would bind the parties and operate as res-judicata at all
subsequent stages of the suit. Satyardhan Ghoshal v. Deoranjan Debi, AIR 1960
Condition for application of Section 11

1. The matters directly and substantially in issue in the subsequent suit must be the same,
which was directly and substantially (either actually or constructively) in issue in the
former suit.
2. The former suit must have been a suit between the same parties or between parties under
whom they or any of them claim. (explanation VI with this condition]
3. The parties must have been litigating under the same title in the former suit.
4. The Court which has decided the former suit must be competent to try the subsequent suit.
[explanation II and IV with this condition]
5. The matters directly and substantially in issue in the subsequent suit must have been heard
and finally decided in the former suit.
Former suit

'Former suit' means a suit which has been decided prior to the suit in question, whether or not
it was instituted prior thereto [Explanation 1 to Section 11]. For example, if Suit No. 1 between A
and B was instituted on 1" January 2000 and Suit No. 2 between A and B was instituted on 1"
January 2001, then in this scenario Suit No. 1 will be previously instituted suit because it was
instituted prior in point of time. However, if Suit No. 2 is decided on 1" July 2005 and Suit No. 1
is still pending or is decided subsequent to Suit No. 2 then in this scenario Suit No. 2 will be
former suit with reference to Suit No. 1 because it is decided prior in point of time. Therefore,
for 'previous suit' we will have to look at the date of institution of suit and for 'former suit' we
have to look at the date of decision of the suit