Stay of Suit-1597306232

CIVIL AND CRIMINAL
LITIGATION: CIVIL
PROCEDURE CODE
Stay of Suit

Civil and Criminal Litigation: Civil Procedure Code
Stay of Suit
This note contains:

Stay Of Suit 3
Flow chart on section 10 4
Nature of Section 10 5
Scope of Section 10 5
Essential conditions of Res Sub Judice: 6
The Objective behind the applicability of Res Sub- judice: 6
Subject Matter of Section 10: 6
Exceptions to the rule of Res Sub Judice: 7
Illustrations and case study on Section 10: 7
Other Provisions dealing with Stay of Suit in C.P.C: 8

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Stay of Suit
Stay Of Suit
Section 10 of the Civil Procedure Code (hereinafter C.P.C) provides for the Stay of a suit.
This Section states:

Stay of Suit: 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 continued 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.

Before we delve into the theory about Section 10 of the C.P.C, it is important to dissect this
Section and understand the meaning assigned to each and every word of it. In this regard,
kindly refer to the under mentioned flowchart:


Stay of Suit

Flow chart on section 10


Stay of Suit
Nature of Section 10
The roots of Section 10 of the C.P.C lie in the first part of Section 9 which states that “The
Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a
civil nature excepting suits of which their cognizance is either expressly or impliedly
barred.” Here we must note that Section 10 expressly bars those suits the subject matter of
which is already pending either in the same Court or in any other Court having jurisdiction.

Even though Section 10 does not expressly use the term Res Sub Judice, the crux of the
entire Section is found in this word which literally means: ‘a matter in issue’ or ‘under
judgment’.

A matter in issue or fact in issue is defined as ‘the ultimate fact or state of facts set forth in
legal pleadings on which a verdict or finding is predicted as distinguished from the
1
evidentiary facts offered to prove the ultimate facts or fact pleaded.’
Scope of Section 10
A focussed reading of the first line of Section 10 - Stay of Suits i.e. ‘No Court shall proceed
with the trial of any suit.....” indicates that a suit may be instituted upon the same matter
which is already pending in a Court having jurisdiction. Though, an understanding of the
entire Section tells us that the merits cannot be determined again. Hence, the subsequent
suit cannot be dismissed by a court, but must be stayed. However, in the case of Pukhraj D
Jain v. G. Gopalkrishna (2004) 7 SCC 251, the apex Court held that ‘Section 10 does not take
away the 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.’ Similarly, a civil court also has inherent power under Section 151 to:

i. Stay a suit even when the conditions of Section 10 are not completely fulfilled, in light
of meeting the ends of justice.
ii. ‘To consolidate different suits between the same parties in which the matter in issue
2
is substantially the same.’

Further, Section 10 is simply a rule of procedure. This implies that the parties can choose to
waive their rights i.e. they can expressly request the Court to proceed with a subsequent
suit and upon doing so they are not in a position to subsequently challenge the validity of
3
the latter proceedings.

Finally, the Supreme Court in the case of Indian Bank v. Maharashtra State Coop. Mktg.
Federation Ltd., (1998) 5 SCC 69 has stated that ‘an order of a stay of suit does not take
away the power of the Court from passing interim orders.’ This means that even if a suit
has stayed under Section 10 of the C.P.C, this does not imply that interim orders of
1
https://law.academic.ru/67427/matter_in_issue
2
C.K. Takwani, CIVIL PROCEDURE CODE, ed.8th, 2017- EBC
3
C.K. Takwani, CIVIL PROCEDURE CODE, ed.8th, 2017- EBC


Stay of Suit
attachment before judgment, the appointment of the receiver, temporary injunction etc
cannot be passed.
Essential conditions of R
es Sub Judice :
For the applicability of Section 10 to a particular suit, the following conditions must be
satisfied:

1. There must be a previously instituted suit as well as a subsequently instituted suit.
2. The matter in an issue of the subsequent suit must be directly and substantially in
issue in the previously instituted suit i.e. when the matters in controversy are
different, Section 10 has no applicability.
3. A mere commonality of grounds between the previous suit and the subsequent suit is
not sufficient.
4. The two suits must lie either between the same parties or their representatives.
5. The previously instituted suit could be pending:

i. Either in the same Court;or
ii. in any other Court in India having jurisdiction; or
iii. in a Foreign Court under the control of the Central Government;or
iv. finally the Supreme Court of India.

6. The Court which is already trying the previous suit must have jurisdiction to grant
adequate relief in the matter.
7. The title of the litigating parties must be the same.
The Objective behind the applicability of R

es Sub- judice:
As held in the case of Indian Bank v. Maharashtra State Marketing Cooperation Ltd 1998 (5)
SCC 69 – ‘The objective behind the rule contained in Section 10 of the C.P.C is to ‘prevent
Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon
two parallel litigations’ in respect of the:

i. Same Cause of Action,
ii. Same subject matter, and
iii. Same relief.

And also, to protect a person from the multiplicity of proceedings along with avoiding
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conflicting decisions in the same matter.’
Subject Matter of Section 10:

Section 10 restricts itself to the word ‘suit’. The word ‘suit’ has not been defined under the
C.P.C. As per its dictionary meaning, a Suit is a civil proceeding that has been instituted by
4
Indian Bank v. Maharashtra State Marketing Cooperation Ltd 1998 (5) SCC 69


Stay of Suit
5
the presentation of a plaint. From the various decisions of the Court, it can be derived that
the suit includes appeals, however the same is not applicable to other proceedings.

In the case of Indian Bank v. Maharashtra State Marketing Cooperation Ltd 1998 (5) SCC 69,
the Supreme Court has clarified that ‘though the heading of Section 10 provides for the
Stay of Suit, the language of the body indicates that the rule of Res Sub Judice applies only to
the trial and not the institution of the Suit per se.’ The rationale being that, in a scenario
where the earlier suit is hit by technicalities and the institution of a subsequent suit is
barred, it would lead to injustice.

Meaning of the term ‘pending’. Till the time a final decree has not been passed, the suit is
pending. This connotation can be derived from Section 2(2) which essentially describes a
decree as conclusively determining the rights of the parties.
Exceptions to the rule of R

es Sub Judice :
Following are the exceptions to the rule of res sub judice:

i. Explanation 1 to Section 10: 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.
ii. Summary Suits: In the case of Indian Bank v. Maharashtra State Marketing Cooperation
Ltd 1998 (5) SCC 69, it was held that summary proceedings under Order 37 of the
C.P.C are not a trial per se as a consequence to which Section 10 will not apply to
them.
iii. No Court shall proceed with a trial: Section 10 only bars the trial of a suit. Thus, the
Court can grant an interim order, interlocutory order and appoint a receiver despite a
pending suit.
Illustrations and case study on Section 10:

1. Illustration: B resides in Calcutta and has an agent in Calicut. A sells B’s goods in Calicut.
A sues B in Calicut claiming a balance due in Calicut. During the pendency of the suit, B
also institutes a suit against A in Calcutta for the loss incurred due to A.

On the issue of whether the case by B in Calcutta is maintainable, the answer is in negative.
As the matter is directly and substantially in issue, the second suit in Calcutta is not
maintainable.
2. Case Study: In the case of Manohar Lal v. Seth Hiralal 1962 AIR 527, the issue of
applicability of Res Subjudice under Section 10 of the C.P.C arose. The fact situation, in
brief, was that a contract was made between A and B that in case of a dispute, the suit
would be filed in Jaipur. Since one of the parties was residing in Mumbai, B filed a suit
in Mumbai and A filed a subsequent suit in Jaipur.
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https://law.academic.ru/67427/suit


Stay of Suit
The Court, in this case, held that consent can only confer and not take away the
power under Section 10. Since Section 10 is above a contract, Res Sub Judice will apply
to the case in Jaipur. The bearing of the jurisdiction in a contract will not override
Section 10. The court further held that ‘the language of Section 10 is clear, definite
and mandatory. It prohibits the trial of a subsequent suit. It makes no difference that
a suit was filed in the violation of the contractual agreement of the parties.’
Other Provisions dealing with Stay of Suit in C.P.C:

I. Order 30, Rule 2 (2): Disclosure of Partner’s name- Where the Plaintiffs or their
pleader fails to comply with any demand in writing by or on behalf of any defendant,
forthwith declare in writing the names and places of residence of all the persons
constituting the firm on whose behalf the suit is instituted.
II. Order 32, Rule 10: Stay of proceedings on removal, etc., of next friend.
III. Order 35, Rule 3: Procedure where defendant is suing plaintiff:
IV. Where any of the defendants, in an interp, leader-suit, is actually suing the plaintiff in
respect of the subject-matter of such suit, the Court in which the suit against the
plaintiff is pending shall, on being informed by the Court in which the interpleader
suit been instituted, stay the proceedings as against him; and his costs in the suit so
stayed may be provided for in such suit; but if, and in so far as, they are not provided
for in that suit, they may be added to his costs incurred in the interpleader suit.
V. Section 151: Saving of inherent powers of Court: Nothing in this Code shall be
deemed to limit or otherwise affect the inherent power of the Court to make such
orders as may be necessary for the ends of justice or to prevent abuse of the process
of the Court.


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CIVIL AND CRIMINAL

This note contains:

The Objective behind the applicability of R

Subject Matter of Section 10:

Exceptions to the rule of R

Illustrations and case study on Section 10:

Other Provisions dealing with Stay of Suit in C.P.C:

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