Res Sub-Judice

Res sub-judice refers to a matter or case which is under consideration by a court of law. Section 10 of the Code of Civil Procedure deals with the concept of res sub-judice. It provides that no court shall proceed with the trial of any suit or issue in which the matter directly and substantially in issue is already pending in another court competent to grant the relief claimed.

The objective is to prevent courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel proceedings in respect of the same subject matter. If the matter in the subsequent suit is directly and substantially similar to the one in a previously instituted suit which is pending in another competent court, the subsequent suit is liable to be stayed.

The test is whether the matter in controversy in the two proceedings is substantially the same and can be determined on the same evidence. If the decision in the earlier suit would operate as res judicata in the later suit, the matter would be treated as res sub-judice. However, slight difference in parties or prayed reliefs may not make the matter different if the core controversy is identical. If Privy Council proceedings are pending involving the same subject matter, it amounts to res sub-judice for courts in India.

Res Judicata

Res judicata means a matter finally decided by a competent court and barred from future litigation. Section 11 of CPC provides that once a matter is directly and substantially in issue and has been heard and finally decided by a competent court, the parties cannot re-agitate the same issue further in subsequent proceedings. It applies to issues heard and decided on merits, and not to collateral or subsidiary points.

The essential conditions for applicability of res judicata are:

• The matter must have been directly and substantially in issue in the former suit.
• The former suit must have been between the same parties or parties litigating under the same title.
• The parties must have litigated under the same title in the former suit.
• The court which decided the former suit must have been competent to try the subsequent suit in which the issue is raised.
• The matter directly and substantially in issue must have been heard and finally decided by the court in the former suit.

If these conditions are satisfied, the court shall not entertain re-litigation on the same issue. The objective is to prevent multiplicity of proceedings and contradictory judgments. Res judicata ensures finality and prevents abuse of process. It applies to issues of fact, law or to mixed questions of law and fact heard and decided in the former suit.

Restitution

Restitution refers to the restoration of parties to their original position they were in before the litigation. Sections 144 and 151 confer wide powers on the court to order restitution. Where a decree is varied, reversed, set aside or modified in appeal, review or other proceeding, the court which passed the decree has power to make restitution and adjustments consequential to the variation, reversal or modification. 

For example, if in execution of decree for payment of money, any amount is recovered and paid to the decree holder, and thereafter the decree is reversed or modified, the appellate court may order restitution of the amount to the judgment debtor. This restores parties to their original position as if the incorrect decree never happened. The power of restitution applies to both movable and immovable property. It extends to third parties who may be dispossessed or deprived of property by the execution of the incorrect decree.

Caveat

Caveat refers to a request made to the court to not pass any ex-parte order without giving notice or hearing the caveator. Section 148A provides that a caveat may be lodged by any person claiming a right to appear before the court on the hearing of any application. If a caveat is filed, the court shall serve notice on the caveator before passing any order on the application.

The caveator must disclose the nature of the claim, interest or objection to the proceedings. The purpose of caveat is to protect a person’s interest against any ex-parte interim order being passed by the court without hearing him. It operates as a caution to the court to not proceed with the matter in the absence of the caveator. Caveats may be made absolute for a certain period. A caveator added as defendant to the suit is entitled to file a written statement.

Inherent Powers of Courts

Section 151 preserves the inherent powers of the court to make orders necessary for the ends of justice or to prevent abuse of process of the court. This recognizes inherent powers vested in courts to enable them to effectively and completely adjudicate the disputes before them. Section 151 does not confer any new or additional powers, but merely safeguards powers innate to courts.

The powers under Section 151 can be invoked in the absence of specific statutory provisions if the exigencies of justice demand so. The court can pass orders or take steps to secure justice, including process and procedure beyond what is prescribed in the CPC. However, such powers cannot be exercised in disregard of express statutory provisions. Section 151 powers must be exercised judiciously and sparingly in compelling circumstances which demand action to further the interests of justice.

Reference

Reference refers to the power of civil courts under Section 113 of CPC to refer questions of law or fact arising in the suit to the High Court for its opinion. Where substantial questions of law or fact of general importance are involved, the district court may refer the same for opinion of the High Court. Reference enables subordinate courts to take the aid and opinion of the High Court on knotty issues to effectively adjudicate the dispute.

The High Court may direct the lower court to try the suit and return findings of fact, after which the High Court will deliver its opinion on the question of law referred. Alternatively, the High Court may itself try the issue and return findings of fact and deliver opinion on the question of law. The lower court is bound by the findings and opinion of the High Court on reference.

Review

Review refers to the court’s inherent power to reconsider its judgment and orders. Section 114 and Order XLVII provide for review of judgments and orders based on discovery of new evidence, error or omission, or other sufficient cause. The court can rectify errors to avoid miscarriage of justice. The grounds for review are:

• Discovery of new evidence which was not available or could not be produced during trial despite diligence.
• Mistake or error apparent on the face of the record.
• Any other sufficient reason which calls for review.

A review does not allow re-agitation of the same issues but is confined only to the extent required for rectification of error. The party seeking review must demonstrate apparent error which stares on the face of judgment. The court exercises judicial discretion while allowing review.

Revision

Revision refers to the power of the High Court under Section 115 to call for records of any lower court proceedings pending or disposed and confirm, modify or reverse any decree or order. Revision is a supervisory jurisdiction exercised by High Court over subordinate courts to keep the wheels of law and justice properly moving.

The High Court may exercise revision where lower court has:

• Exercised jurisdiction not vested in it by law.
• Failed to exercise jurisdiction vested in it by law.
• Acted illegally or materially irregularly in exercise of jurisdiction.

Revision is necessary to keep subordinate courts within bounds of authority, ensure even flow of justice and prevent miscarriage of justice. It is a quasi-appellate power to be exercised sparingly in exceptional cases where glaring injustice has been caused by irregularity in lower court proceedings.