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Ingredients of Section 10

Case Law: Escorts Const. Equipments Ltd V Action Const Equipments Ltd (999
IIIAD Delhi 464, 79 (1999) DLT 300.)

It is well settled that in order to attract provisions of Section 10 CPC, following conditions
must be satisfied:-

(i) the matter in issue both suits must be substantially the same;
(ii) the previously instituted suit must be pending in the same Court in which the subsequent
suit is brought or in a different court in India having jurisdiction to grant the relief claimed;
(iii) both the suits must be between the same parties or their representatives.

Case Law: P.P. Gupta vs East Asiatic Co., Bombay (AIR 1960 All 184)

Section 10 C.P.C. does not bar the institution of a second suit during the pendency of an
earlier one in which the matter in issue is the same; it merely directs that the trial of the later
suit cannot be proceeded with. The court in which the second suit is filed is properly seized of
it. It is a court of the competent jurisdiction as regards that suit. Section 10 therefore does
not go to the root of the jurisdiction of the court trying the second suit, but merely lays down
a rule of procedure; it directs the Court to wait till the decision of the earlier suit.

Case Law: National Institute of M.H & N.S v C. Parameshwara (AIR 2005 SC 242)

The fundamental test to attract Section 10 is, whether on final decision being reached in the
previous suit, such decision would operate as res-judicata in the subsequent suit. Section 10
applies only in cases where the whole of the subject matter in both the suits is identical. The
key words in Section 10 are "the matter in issue is directly and substantially in issue" in the
previous instituted suit. The words "directly and substantially in issue" are used in contra-
distinction to the words "incidentally or collaterally in issue". Therefore, Section 10 would
apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the
whole of subject matter in both the proceedings is identical.

Case Law: Prism entertainment Pvt ltd. V Prasad productions Pvt ltd (AIR 2006 Cal

To decide whether the second suit is hit by Section 10 or not the test is to find out whether
the plaint in one suit would be the written statement in the other suit or not. Once such test is
positive a decision in one suit would operate as resjudicata in the other suit. That is the
principal test on which Section 10 is applied. The parties., in my view, may not be the same
as one suit may have one additional party that would not make Section 10 inapplicable.

Case Law: Shorab Merwanji Modi And Anr. vs Mansata Film Distributors (AIR
1957 Cal 727)

If the Calcutta plaintiffs defence in the Bombay Suit is substantially his plaint in Calcutta
suit and if the Bombay plaintiffs defence in the Calcutta suit is virtually his plaint in the
Bombay suit, the matter in issue between the parties in the two suits would seem to be
substantially the same. The fact that one is a suit under the agreements and the other is a suit
de hors the agreements does not make a substantial identity of the subject-matter per se

Case Law: GC Care Centre & Hospital v. OP Care Pvt. Ltd., (AIR 2004 SC 2339)

Ruling: It is the subsequent suit that is liable to be stayed, and not the previous one.
Therefore, applying the rule of res sub judice, it is only the subsequent suit that has to be

Counter Claim and Section 10, CPC

Case Law: Aminchand Pyarelal vs Union of India (1977) 79 BOMLR 1

Question before the Court: Whether Section 10, Civil Procedure Code applies at all to a
counter-claim, or whether it applies only to cases in which the proceeding which is sought to
be stayed is a suit?

To stay a counter-claim under Section 10 of the Code of Civil Procedure would, in my

opinion, therefore, amount to granting a stay in respect of a part of the suit which, as stated
later on in this judgment, is not permissible under that section. It is, therefore, not at all
surprising that Mr. Thakkar, inspite of his usual industry, has had to concede that he could
not find a single reported case in which the provisions of Section 10, Civil Procedure Code
had been applied to a counter-claim and a counter-claim stayed thereunder. Apart from
authorities, on a construction of the plain terms of the relevant Rules relating to the
procedure by way of counter-claim which have been discussed above, I have, therefore, come
to the conclusion that a counter-claim is a part of the original suit itself and is a defence to
the extent of the plaintiff's claim, though to the extent to which it exceeds that claim, it has
"the same effect as a cross-suit".

Holding, as I do, that those Rules do not make a counter-claim a suit in the real sense of the
term, I further hold that Section 10 of the Code of Civil Procedure which applies to a suit
does not apply to a counter-claim. On that ground alone I would, therefore, decline to grant
the order for stay under Section 10 sought by the plaintiff on the present Motion.