RES SUB JUDICE: STAY OF SUIT: Section 10 of the Code of Civil Procedure, 1908

RES SUB JUDICE: STAY OF SUIT: Section 10

 

Section 10 reads thus:

“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 India having jurisdiction to grant the relief claimed, or in any court beyond the limits of India established or constituted by the Central Government and having like jurisdiction, or before the Supreme Court.

Explanation. – The pendency of a suit in foreign court does not preclude the courts in India from trying a suit founded on the same cause of action.”

Nature and scope

Section 10 declares that no court should proceed with the trial of any suit in which the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties and the court before which the previously instituted suit is pending is competent to grant the relief sought.  The rule applies to trial of a suit and not the institution thereof. It also does not preclude a court from passing interim orders, such as, grant of injunction or stay, appointment of receiver, etc. It, however, applies to appeals’ and revisions.

 

Object

The object of the rule contained in Section 10 is to prevent courts of concurrent jurisdiction from simultaneously entertaining and adjudication upon two parallel litigations in respect of the same cause of action, the same subject-matter and the same relief. The policy of law is to confine a plaintiff to one litigation, thus obviating the possibility of two contradictory verdicts by one and the same court in respect of the same relief.

The key words in Section 10 are “the matter in issue is directly and substantially in issue in a previously instituted suit”. Hence, when the matter in controversy is the same, then only Section 10 applies. When it is different, the section has no application.

The section intends to protect a person from multiplicity of proceedings and to avoid a conflict of decisions. It also aims to avert inconvenience to the parties and gives effect to the rule of res judicata. It thereby saves time and energy of courts as well as of parties.

It is to be remembered that the section does not bar the institution of a suit, but only bars a trial, if certain conditions are fulfilled. The subsequent suit, therefore, cannot be dismissed by a court, but is required to be stayed.

Extent and applicability

The provisions of Section 10 apply only to suits and not other proceedings. Section 10, hence, has no application if one of the two proceedings is not a suit. Thus, an application for permission to file a suit as an indigent person or claim for interim maintenance or proceedings before Labour Court, Industrial Tribunal, etc. would not be stayed.

Conditions

For the application of this section, the following conditions must be satisfied:

  1. There must be two suits, one previously instituted and the other subsequently instituted.
  2. The matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit.
  3. Both the suits must be between the same parties or their representatives.
  4. The previously instituted suit must be pending in the same court in which the subsequent suit is brought or in any other court in India or in any court beyond the limits of India established or continued by the Central Government or before the Supreme Court.
  5. The court in which the previous suit is instituted must have jurisdiction to grant the relief claimed in the subsequent suit.
  6. Such parties must be litigating under the same title in both the suits.

As soon as the above conditions are satisfied, a court cannot proceed with the subsequently instituted suit since the provisions contained in Section 10 are mandatory, and no discretion is left with the court. It is, however, necessary that for Section 10 to be attracted it is essential that entire subject-matter in controversy must be the same between the previous suit and the subsequent suit. Mere common grounds between previous and subsequent suit would not be sufficient. The order staying proceedings in the subsequent suit can be made at any stage. Section 10, however, does not take away power of the court to examine the merits of the matter. If the court is satisfied that subsequent suit can be decided purely on legal point, it is open to the court to decide such suit.

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