S.10 of the Code of Civil Procedure 1908 deals with Res Subjudice. The latin word ‘Res’ means a thing and ‘Subjudice’ means ‘under a judge’. This technically means ‘stay of suit’. A suit is to be stayed if its subject matter is already a matter of issue in another court.
The section provides that no court shall go on with the proceedings of any suit which consists of the same parties and same issue that is already instituted in another court.
1. There must be two suits, one previously instituted and one subsequently instituted.
2. Both suits must have the same matter in issue.
3. The former suit must be pending in the same court or any court competent to try the subsequent one.
4. Both suits must have same parties under the same subject matter
5. The parties must represent same title in both the suits.
In the case of Ayat Ali Bhuiyan v Janata Bank, it was held that if all the conditions have been fulfiled, the court has no option but to stay the subsequent suit.
In Life Pharmaceuticals v Bengal Medical Hall AIR 1971, the court held that an application under s.10 can be made at any stage of the suit.
S.11 of the CPC deals with Res Judicata. This latin term taken from the Roman Law literally means ‘thing settled by judicial decisions’. According to its maxims:
Anything adjudicated makes white black, black white, curved straight and straight curved.
Anything that has been adjudicated is received to be true and final
It concerns the state that there be an end to lawsuits
A man shall not be vexed twice for the same cause.
Therefore the main principle of s.11 is that once a competent court has given its final judgment, none of the parties of the suit can contradict it against each other in another suit. There shall be an end to law suit once the judgment is given.
1. The matter in issue in the former suit must be same as the subsequent one
2. Both suits must have the same parties
3. The court in the former suit must be competent to try the subsequent one
4. The decision to be given in the subsequent suit must already be given in the former one.
5. The parties must represent same titles in both the former and subsequent suit.
If the former suit was for the recovery of khass possession, then a subsequent suit for partition of that khass wont be prevented (Alekjan v Chandmiah). However if the former suit on recovery of possession was dismissed for failure to prove his case, then a subsequent suit for the same prayer will not be allowed. (Hafizuddin v Bangladesh)
Distinguishing between the two:
1. Res Subjudice is defined in s.10 while Res Judicata can be found in s. 11 of CPC
2. Res Subjudice keeps one suit open and another closed while Res Judicata believes in ending the litigation once and for all.
3. Res Subjudice pervents multiplicity of Judicial proceedings while Res Judicata prevents charging the same person again
4. Res Subjudice prevents plaintiff from hassle of two suits while Res Judicata upholds the decision of a competent court by regarding it as final.