Res sub judice

Res sub judice refers to a matter that is pending before a court for decision. The rule is codified in Section 10 of the Code of Civil Procedure, 1908: 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 parties under whom they claim, litigating under the same title, where that suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in a court beyond India established or continued by the Central Government with like jurisdiction, or before the Supreme Court.

The conditions are cumulative. There must be two suits, one instituted earlier than the other. The matter in issue in the later suit must be directly and substantially in issue in the earlier one, not merely collaterally. The parties must be the same or claim under the same parties, litigating under the same title. The earlier suit must be pending in a court competent to grant the relief claimed in the later suit. The Explanation adds that the pendency of a suit in a foreign court does not preclude Indian courts from trying a suit on the same cause of action.

Section 10 bars only the trial of the later suit, not its institution. The later suit may be filed and kept pending, and the court is not prevented from passing interlocutory orders in it. The object is to prevent courts of concurrent jurisdiction from trying parallel suits on the same issue, and so to avoid conflicting decisions and waste of time.

Res sub judice differs from res judicata under Section 11. Res sub judice concerns a matter still pending and stays the later trial; res judicata concerns a matter already heard and finally decided and bars the later suit or issue. Both rest on the policy that a party should not be vexed twice for the same cause. Examiners test the conditions in Section 10, the foreign court Explanation, and the contrast with Section 11.