A PROJECT REPORT ON – “STAY OF SUIT: SCOPE AND OBJECT OF THE

RULE”
MANIPAL UNIVERSITY JAIPUR

UNDER SUPERVISION OF:- SUBMITTED BY:-

Dr. SONY KULSHRESTHA MUKUL BAJAJ
ASSOCIATE PROFESSOR 151301052
 CERTIFICATE

This is to certify that Mr. Mukul Bajaj student of B.A.LL.B (Hons.), Seventh Semester, School
of Law, Manipal University Jaipur has completed the project work entitled “Stay of Suit: scope
and object of the Rule”, under my supervision and guidance.
It is further certify that the candidate has made sincere efforts for the completion of the project
work.

SUPERVISOR NAME

(Dr. Sony Kulshrestha)

Associate Professor
 ACKNOWLEDGEMENT

I express deep sense of gratitude and indebtness to our teacher Dr. Sony Kulshrestha under whose
guidance valuable suggestions, constant encouragement and kind supervision the present project
was carried out. I am also grateful to college and faculty of law for their feedback and for
keeping us on schedule.
I also wish my sincere thanks to my friends who helped directly or indirectly by giving their
valuable suggestions.

Mukul Bajaj
Contents
INTRODUCTION...........................................................................................................................5
SUBJUDICE....................................................................................................................................6
Scope:..............................................................................................................................................6
Object:..............................................................................................................................................6
Case Laws........................................................................................................................................7
Conclusion.......................................................................................................................................8
Res Judicata.....................................................................................................................................9
Ingredients of S.11 CPC – Rule of Conclusive Judgement...........................................................10
S.11 Mandatory Provision.............................................................................................................12
Public Interest Litigation...............................................................................................................12
Applications of Res Judicata.........................................................................................................13
Non Application of Res Judicata...................................................................................................14
BIBLIOGRAPHY..........................................................................................................................15
INTRODUCTION

The first provisions related to avoiding multiplicity of suit starts with the provision of the
concept of Res Sub Judice as under:
Section 10 of the Civil Procedure Code, 1908 speaks about “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.

As the heading of the section says ‘stay of suit’, means no court should proceed with the trial of
any suit in which the matter in issue is directly and substantially in issue with the 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.
SUBJUDICE

    Sub Judice in Latin means “Under Judgement”. It denotes that a matter or case is being
considered by Court  or Judge. When two or more cases are filed between the same parties on the
same subject matter, in two or more different Courts, the competent court has power to “Stay
Proceedings” of another Court. In India, this concept is encapsulated in S.10 of Civil Procedure
Code.

S.10: Stay of Suit

                No Court to proceed with trail of any suit in which the matter in issue, is also directly
and substantially in issue. In 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 same or any other Court, in India, Having jurisdiction to grant relief claimed.

Explanation: The pendency of a suit in a Foreign Court doesn’t preclude the Courts in India
from, trying a suit founded on same cause of action.  

Scope: S.10 deals with the concept of Res Sub Judice.

Object: The object of S.10 is to prevent Courts of concurrent jurisdiction from simultaneously,

trying two parallel cases, in respect of same matter in issue. The two fold objects are:

1)      Avoid wasting Court Resources.

2)      Avoid Conflicting decisions.

Conditions:  The conditions that are needed for Res Sub Judice to apply are

·         The matter in issue in both the cases are to be substantially the same
·         Previously instituted suit must be pending in the same or any other court competent to
grant:

A)     Relief claimed in the suit.

B)      Relief claimed in subsequent the suit.

·         Suits to the parties are to be the same or between parties under whom they or any of them
claim, litigating under the same title.

·         Pendency of suit in Foreign Court doesn’t activate S.10 CPC.

·         If suit is pending before a Court and subsequently an application is filed before a
Thasildhar, it doesn’t invoke S.10 as Thasildhar is not a “Court”

·         For purpose of institution, the date of presentation of plaint and not the date of admission
is considered. The term suit includes appeal.

·         Any decree passed in violation of S.10 is null and void.

Ex: ‘A’ an agent of ‘B’ at Delhi agreed to sell B’s goods in Chennai. ‘A’ the agent files suit for
balance of accounts in Chennai. ‘B’ sues the agent ‘A’ for accounts and his negligence in Delhi;
while case is pending in Chennai. In this case, Delhi Court is precluded from conducting trail and
A can petition Chennai Court to direct stay of proceedings against Delhi Court.

Case Laws

Dees Piston Ltd  V State Bank of India 1991

                                Held, when a matter is before a competent Civil Court, the National

Commission will not entertain a petition in respect of identical subject matter under Consumer
Protection Act.

Escorts Const. Equipments Ltd V Action Const Equipments Ltd 1998

Facts: The defendant had filed for stay of present suit, an application u/s 10 CPC, on ground that
the matter in controversy is pending in Jamshedpur Court also. This was opposed by plaintiff on
ground that, the defendants had raised issue of jurisdiction of Jamshedpur Court to entertain
same suit; and that application u/s 10 CPC can be filed in the present suit, only if objection with
respect to lack of jurisdiction was withdrawn in Jamshedpur Court.

Judgment: Court held that the conditions requisite to invoke S.10 CPC are:

·         Matter in issue in both the suits to be substantially the same.

·         Suit to be between the same parties or parties litigating under them

·         Previously instituted suit to be in the same Court or a different Court, which has
jurisdiction to grant the relief asked.

There is nothing to the effect that defendant should not question the competency of previously
Court in the previously instituted suit, and there remains the fact that the plaintiff in their defence
against S.10 CPC, had not stated the Jamshedpur Court is competent. Thus relief was granted to
the defendant.'

Indian Bank V Maharashtra State Co-Operative Marketing Federation 1998

                Held, that the object of prohibition in S.10 CPC, is to,

·         Prevent Courts of concurrent Jurisdiction from simultaneously trying two parallel cases

·         Avoid inconsistent findings on the matter in issue.

Conclusion

                                Res Sub Judice, operates as a stay from the same subject matter in issue
being parallel instituted in two different Courts. S.10 CPC has the twin objects of

·         Avoiding conflicting decisions and findings.

·         Avoiding wastage of Court resources and time.

Res Judicata
            Res Judicata in Latin means “a matter (already) judged.” It is also called as Claim
Preclusion. It is a common law practice meant to bar re-litigation of cases between the same
parties in the court.

            A case in which there has been a final judgement and is no longer subject to appeal, the
doctrine of Res Judicata bars (precludes) continued litigation of such matter between the same
parties. Thus in case of Res Judicata, the matter cannot be raised again, either in the same court
or in a different court.

Res Judicata aims to prevent

·         Injustice to the parties of a case that has been supposedly concluded.

·         Unnecessary waste of Court resources.

·         Prevent Multiplying of judgements.

·         Recovery of damages from the defendant twice for the same injury.

Res Judicata can also be related to

·         Claim Preclusion                           

·         Issue Preclusion 

Claim Preclusion: It focuses on barring a suit from being brought again on a legal cause of
action, that has already been, finally decided between the parties.

Issue Preclusion: Bars the re-litigation of factual issues that have already been necessarily
determined by a judge as part of earlier claim.

NB: This doesn’t include the process of Appeal , as it is considered to the appropriate way to
challenge a judgement. Once the appeal process is exhausted or barred by limitation, the Res
Judicata will apply to the decision.
The Three Maxims

            Doctrine of Res Judicata or Rule of Conclusive Judgement is based on the following

three maxims:

1)       NEMO DEBET LIS VEXARI PRO EADEM CAUSA- No Man to Be Vexed Twice For
The Same Cause.

2)      INTEREST REPUBLICAE UT SIT FINIS LITIUM- It is in the Interest of the State That
There Should Be End To Litigation.

3)      RE JUDICATA PRO VERITATE OCCIPITUR- A Judicial Decision Should Be Accepted

As Correct.

Ingredients of S.11 CPC – Rule of Conclusive Judgement

No Court shall try any suit or issue in which

-          The matter directly and substantially in issue

-          Has been

-          Directly and substantially in issue in a former suit

-          Between the same parties

-          Or between parties claiming  under them, litigating under the same title

-          In a court competent to try such suit

-          Or a suit in which the matter has been subsequently raised

-          And has been heard and finally decided by such court

The following are also to be taken into account:

1)      Former suit denotes a suit which has been decided prior to the suit in question, and not if it
was prior to this suit. i.e. the cut-off is date of judgement and not the date of institution of the
suit.

2)      Competency of a Court is to be decided, irrespective of the right to appeal from a former

suit.

3)      The matter referred to in this suit must have been alleged by one party and either accepted
or refused by the other party (expressly/impliedly).

4)      Any matter which might or ought to have been made ground of attack/defence in such
former suit, shall be deemed to have been a matter directly and substantially in issue in such suit
(Constructive Res Judicata).

5)      If any relief was claimed in plaint and was not granted expressly, it would be deemed to
have been refused in such former suit.

6)      When persons litigate bonafide in respect of a public / private right claimed in common for
themselves and others, all persons interested for the purpose of S.11 , will be deemed as claiming
under persons litigating.

7)      It is also to be remembered that, a Court of limited jurisdiction where the former suit was
instituted and decided upon, shall operate as Res Judicata, even if the Court of limited
jurisdiction is not competent to try the subsequent suit.

8)      This S.11 applies to execution proceedings also.

In Slochana Amma V Narayana Nair 1994:    Held, the doctrine of Res Judicata applies to quasi
judicial proceedings before tribunals also.
In  Govndaswamy V Kasturi Ammal 1998: Held, the Doctrine of Res Judicata applies to the
plaintiff as well as the defendant.

In Umayal Achi V MPM Ramanathan Chettiar Held, the correctness or otherwise of a judicial

decision has no bearing upon whether or not it operates as Res Judicata.

S.11 Mandatory Provision

            S.11 is mandatory and not directory in nature. The judgement in a former suit can be
avoided only by taking recourse to s.44 Indian Evidence Act on grounds of fraud or collusion.

Beli Ram Brothers V Chaudari Mhd Afzal

            It was held, that, when it was established that the guardian of the minor had acted in
collusion with the defendant, it doesn’t operate as Res Judicata and can be set aside invoking
S.44 Indian Evidence Act.

Jallur Venkata Seshayya V Tahdaviconda Koteswara Rao 1937

            Held, that, gross negligence in former suit doesn’t amount to fraud or collusion and thus
acts as bar to subsequent suit.

Public Interest Litigation

            The concept of PIL was an innovation of Judicial Activism of Indian Supreme Court, and
it is general rule f PIL that procedural laws are not fully applicable to them. In case of Res
Judicata , it is applicable only when the former suit was bonafide in nature, further more it will
not act as a shield in cases where public good is threatened or questioned.

Rural Litigation and Entitlement Kendra V State of Uttar Pardesh:

            S.C observed that the writ petition before them was not a inter part y dispute and the
controversy in it was whether mining was to be allowed or not. Thus it was a matter that decided
the social safety and providing hazardous free environment. It observed that in matter s of grave
public importance Res Judicata can not be used as ashield.

Ramdas Nayak V Union of India

            Court observed that, in cases of repitative litigations coming under the grab of PIl, it was
high time to put an end to it, invoking Res Judicta.

Applications of Res Judicata

                                              1)   Can be invoked in subsequent stage of same

proceedings.   Y.B.Patil  V  Y.L.Patil:   held once an order made in course of proceedings
becomes  final, it would be binding upon the parties at subsequent stage of the same proceedings.

             2)Can apply against Co-Defendants.

                        Mahaboob Sahab V Syed Ismail: held if the following four conditions are
satisfied Res Judicata will apply

a)      There must be a conflict of interest between the defendants concerned.

b)      It must be necessary to decided such conflicts, in order to give relief to the plaintiff.

c)      The questions between the defendants to be finally decided.

d)      Co-defendants to be the necessary and important parties of the suit must be there.

3)  Can apply betweenCo-Plaintiffs

             Ahamed V Syed Meharban:     held if the following four conditions are satisfied Res
Judicata will apply

a)      There must be a conflict of interest between the co-plaintiffs.

b)      It must be necessary to decided such conflicts, in order to give relief to the plaintiff.
c)      The questions between the plaintiffs to be finally decided.

Non Application of Res Judicata

1)      Habeas Corpus Petitions

Sunil Dutt V Union of India : Held that habeas corpus, filed under fresh grounds and changed
circumstances will not be barred by a previous such petition.

2)      Dismissal of Writ Petition In Limine

Pujaril Bal V Madan Gopal : Held Res Judicata not applicable when dismissed in limine 

( without speaking orders) or on grounds of laches or availability of alternate remedies.

3)      Matter collaterally and incidentally in issue doesn’t operate as Res Judicata – Sayed Mhd V
Musa Ummer

4)      Res Judicata not applicable to IT Proceedings or fixing of fair rent proceedings

BIBLIOGRAPHY

1. Civil Procedure code with Limitation Act, 1963 by C.K. Takwani, Eastern Book Company.
2. Civil Procedure Code Bare Act, Universal Publication.