RES SUB JUDICE: STAY OF SUIT
SECTION 10
"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 a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action.
NATURE & SCOPE
Section 10 bars a trial of any suit, if conditioned mentioned therein are satisfied. However, the section does not bar the institution of a suit. The subsequent suit, therefore, cannot be dismissed by a court, but is required to be stayed. It also does not preclude a court from passing interim orders, such as, grant of injunction or stay, appointment of receiver.
OBJECT
The object of the rule contained in Section 10 is to prevent courts of concurrent jurisdiction from simultaneously entertaining and adjudicating 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 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.
CONDITIONS
For the application of this section, the following condition must be satisfied:
There must be two suits, one previously instituted and the other subsequently instituted.
The matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit.
Both the suits must be between the same parties or their representatives.
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.
The court in which the previous suit is instituted must have jurisdiction to grant the relief claimed in the subsequent suit.
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.
TWO SUITS
C, a resident of Kolkata, has an agent N at Madras employed to sell goods there. N sues C in Madras for balance of accounts in respect of dealing between him and C. During pendency of the suit in Madras Court, C institutes a suit against N in Kolkata for an account and for damages caused by N's alleged negligence. Should both the courts proceed with the trial? If not, which court should not proceed with the trial?
In the above-mentioned facts, it is clear that in the subsequent suit filed by C. The parties are same, the matter in issue in both suits is substantially same, thus the suit filed by C at Kolkata is liable to be stayed as it is fulfilling all the conditions requisite for the application of Section 10.
The expression "matter in issue" means the rights litigated between the parties, i.e. If alleged by one party and denied or admitted either expressly or impliedly by the other. That is the facts on which the right is claimed and the law applicable to the determination of that issue.
Such issue may be an issue of fact, issue of law or mixed issue of law and fact.
Matters in issue may be classified as matters directly and substantially in issue and matters collaterally or incidentally in issue.
"Directly" means directly, at once, immediately, without intervention. The term has been used in contradistinction to "collaterally or incidentally”. No hard and fast rule can be laid down as to when a matter can be said to be directly in issue and it depends upon the facts and circumstances of each case.
"Substantially" means essentially, materially or in a substantial manner. It is something short of certainty but indeed more than suspicion
It means ‘’in effect though not in express terms’’.
A matter can be said to be substantially in issue if it of importance for the decision of a case.
ILLUSTRATIONS
A sues B for rent due. The defence of B is that no rent is due. Here the claim for rent is the matter in respect of which the relief is claimed. The claim of rent is, therefore, a matter in issue.
A sues B for possession of certain properties on the basis of a sale deed in his favour. B impugns the deed as fictitious. A subsequent suit for some other properties on the basis of the same sale deed is filed. The issue about the fictitious nature of the sale deed is actually in issue in the former suit directly and substantially.
Matters in issue may be classified as matters directly and substantially in issue and matters collaterally or incidentally in issue.
The question whether or not a matter is "directly and substantially in issue" would depend upon whether a decision on such an issue would materially affect the decision of the suit.
A sues B (i) for a declaration of title to certain lands; and (ii) for the rent of those lands. B denies A's title to the lands and also contends that no rent is due. In this case, there are two matters in respect of which relief is claimed, viz. (i) the title to the lands; and (ii) the claim for rent. Both these matters are, therefore, directly and substantially in issue
A sues B for rent for the year 1989-90 alleging that B was liable to pay it. The only issue raised by the court was regarding the amount of rent. A files another suit against B for rent for the year 1990-91. B contends that he is not liable to pay rent. The question about B's liability for all years was not alleged and decided in the previous suit and the point was, therefore, not directly and substantially in issue in the previous suit.
'X' filed suit for possession of certain land alleged to have fallen to his share on partition of joint family property with 'Y'. Defendant raised plea that family property has not been divided. Later X' sued 'Y for partition of joint family property. On the careful examination of the facts, it is clear that the matter directly and substantially in issue in the subsequent suit, is not the same which is directly and substantially in issue in the previous suit.
'A' claiming to be entitled to a house as tenant of 'X' sues B for possession 'X' is joined as Performa defendant. X' sues B for possession. B pleads application of Section 10. Is the plea valid? Give reasons.
The given facts of the suit explain that the previous suit was between A and B and the subsequent suit is between B and X. Thus, the main ingredient of section 10, i.e., the suit must be among same parties is not present in given facts. Hence, the plea of ‘B’ will fail as ‘X’ was only a proforma defendant in the former suit.
'M' brought a suit against 'Y’ to recover possession of 'Math' property claiming himself to be heir of deceased Mahant. Later 'M' brought another suit for possession against Y' claiming himself to be Manager of Math property on behalf of Math'. Plea of res sub judice is -decide.
In the given facts, the former suit was filed by M in the capacity of heir of deceased Mahant and the subsequent suit filed by 'M' was in the capacity of Manager of the Math property. Hence, 'M' is not contesting the second suit in the same capacity, i.e., same title.
The Supreme Court has held in Union of India v/s. Promod Gupta, (2005) 12 S.C.C 1, that the term “same title” has nothing to do either with the cause of action or with the subject matter of two suits.
The order staying proceedings in the subsequent suit can be made at any stage.
PUKHRAJ D. JAIN V. G. GOPALAKRISHNA, AIR 2004 SC 3504.
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.
RADHA DEVI V. DEEP NARAYAN, (2003) 11 SCC 759
The test for applicability of Section 10 is whether the decision in a previously instituted suit would operate as res judicata in the subsequent suit. If it is so, the subsequent suit must be stayed.
Suit pending in foreign court --- Explanation to Section 10 provides that there is no bar on the power of an Indian court to try a subsequently instituted suit if the previously instituted suit is pending in a foreign court.
INHERENT POWER TO STAY
ADO RAI V. ONKAR PRASAD, AIR 1975 ALL 413
P.V. SHETTY V. B.S. GIRIDHAR, (1982) 3 SCC403: AIR 1982 SC 83
Even where the provisions of Section 10 of the Code do not strictly apply a civil court has inherent power under Section 151 to stay a suit to achieve the ends of justice.
P.P. GUPTA V. EAST ASIATIC CO., AIR 1960 ALL 184
BOKARO &RAMGUR LTD. V. STATE OF BIHAR, AIR 1973 PAT 340
GURU PRASAD MOHATITY (DR.) V. BIJOY KUMAR DAS, AIR 1984 ORI 209
Similarly, a court has inherent power to consolidate different suits between the same parties in which the matter in issue is substantially the same.
CONSOLIDATION OF SUITS
INDIAN BANK V. MAHARASHTRA STATE COOP. MARKETING FEDERATION LTD., AIR 1998 SC 1952
Since the main purpose of Section 10 is to avoid two conflicting decisions, a court in an appropriate case can pass an order of consolidation of both the suits
CONTRAVENTION: EFFECT
PUKHRAJ D. JAIN V. G. GOPALAKRISHNA, (2004) 7 SCC 251: AIR 2004 SC 3504
A decree passed in contravention of Section 10 is not a nullity, and therefore, cannot be disregarded in execution proceedings
Again, as stated above, it is only the trial and not the institution of the subsequent suit which is barred under this section. Thus, it lays down a rule of procedure, pure and simple, which can be waived by a party.
Hence, if the parties waive their right and expressly ask the court to proceed with the subsequent suit, they cannot afterwards challenge the validity of the subsequent proceedings.
Can one of the two cross-suits be stayed? No, as in cross-suits the reliefs claimed must necessarily be different and there is no identity of reliefs. The court under its inherent power can stay one of the cross suits but such a stay is not contemplated by Section-10 C.P.C.
Can the rule under section 10 of the Code of Civil Procedure 1908, be waived by a party?
a. Yes
b. No
c. Never
d. None of the above
