School of legal studies department of law

COURSE TITLE: CIVIL PROCEDURE CODE-I

COURSE CODE: IL-C-704
ASSIGNMENT ON: STAY OF CIVIL SUIT
(RES-SUBJUDICE)

SUBMITTED BY:
NAME: MOHD FAIZ AHMED
ENROLL NO: 2007CUKMr16
SEMESETER: 7th
COURSE: BALLB (5YEARS)
EMAIL ID: FAIZGTA1@GMAIL.COM

SUBMITTED WITH REGARDS ,

TO,
ADV. ABID JEELANI
DEPARTMENT OF LAW SCHOOL OF LEGAL STUDIES, CENTRAL UNIVERSITY OF
KASHMIR.
 Table of Contents

INTRO- STAY OF SUIT SECTION 10 ..............................................................................................................

OBJECT AND CONDITIONS .............................................................................................................................

ILLUSTRATIONS WITH CASE LAWS .............................................................................................................

OTHER PROVISIONS OF THE CODE REGARDING STAY OF SUITS .....................................................

STAY OF SUITS: SECTION 10
Section 10 deals with the stay of civil suit. It provides that, “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 to section 10 makes it clear that “the pendency of a suit in a foreign court does not
preclude the courts from trying a suit founded on the same cause of action”.
Section 10 is based on the Doctrine of Res-Subjudice which means subject matter is pending
in a court i.e. matter is under trial. Section 10 provides in this behalf that when a matter is under
trial on a certain cause of action and if a subsequent suit is filed on same cause of action by the
same parties, then subsequent suit must not be proceeded with the trial by the subsequent court.
The purpose of this section is to obviate the possibility of two contradictory verdicts regarding
the same cause of action. The explanation states that the court shall not stay subsequent suit
when former suit is pending in a foreign court.
The object of section 10 is to prevent courts of one concurrent jurisdiction from simultaneously
entertaining and adjudicating upon two parallel litigations in respect of same cause of action,
the subject matter and the same relief. The policy of the law is to obviate the possibility of two
contradictory verdicts by one and the same court in respect of the same relief. Thus section 10
is enacted keeping in mind certain objectives:
1. To protect a person from multiplicity of proceedings.
2. To avoid a conflict of decisions by the court of concurrent jurisdiction.
3. To avert the inconvenience to the parties and give effect to the rule of res judicata.

CONDITIONS
For the application of this section, the following conditions must be satisfied:
a) There must be two suits, one previously instituted and the other subsequently instituted.
b) The matter in issue in the subsequent suit must be directly and substantially in issue in
the previous suit.
c) Both the suits must be between the same parties or their representatives.
d) 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.
e) The Court in which the previous suit is instituted must have jurisdiction to grant the
relief claimed in the subsequent suit.
f) Such parties must be litigating under the same title in both the suits.
As soon as the above conditions are satisfied, the 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. The order staying proceedings in the subsequent suit can be made at any
stage.
ILLUSTRATIONS
B is a merchant residing in New Delhi, and he has an agent A, at Mumbai, to sell his goods in
Mumbai. A sues B in Mumbai, claiming a balance due upon an account in respect of dealings
between A and B. While this suit is pending in Mumbai, B files a suit against A in New Delhi
for an account and for damages caused by A’s alleged negligence. In this case, the matter in
issue in B’s suit is directly and substantially in issue in A’s suit, further, both the suits are
between the same parties. In these circumstances, the court in New Delhi must not proceed
with trial of B’s suit, and only the suit in the Mumbai court, being the one instituted prior in
point of time, must be proceeded with. [Padmasee v. Lakhasee, (1916)]
As seen above, the two suits should be between the same parties. Thus, the mere fact that the
first suit is between Z and J as plaintiffs and W, X and Y as defendants, and the second suit is
between W as a plaintiff and Z, J and S (not a party to the first suit) as defendants, will not take
the case out of the scope of section 10, if the other conditions of the section are satisfied. It is
enough that there is a sufficient identity of parties. [S.K Rungta and Co. v. Kishore Debi
Prasad, AIR 1964]
The section only bars the trial, and not the institution of the suit. When the conditions of section
10 are satisfied, the later suit must be stayed. A court cannot dismiss a suit under this section,
it can only postpone the trial.
When the subject matter of the two suits cannot be said to be identical, one being a suit for
mesne profits and the other a suit for title, section 10 of the Civil Procedure Code cannot be
called in aid, so as to claim an unconditional grant of stay. Where it is pre-eminently a case for
stay under section 151 of the code, the court is entitled to impose a condition for granting the
stay. [Narendra Nath Nanda v. Wallamji Lalji, (1971)
It may also be noted that section 10 does not empower one court to stay the proceedings of
another court. Thus, a District Court exercising insolvency jurisdiction cannot, under this
section, stay a suit pending against the insolvent in a subordinate court [The Official Receiver
v. Palaniswami, AIR 1925]
Moreover, Section 10 enacts merely a rule of procedure, and a decree passed in contravention
of the section is not a nullity, and cannot be disregarded in execution proceedings. [Sheopat
Rai v. Warak Chand, 1919]
Sometimes, the contract between the parties provides that all suits under that contract are to be
instituted in a specified court only. Such a stipulation is valid in law. However, the interesting
question that arises in such cases is as follows:
Suppose in such a contract between A and B, Mumbai is the agreed venue of filing suits.
However, A files a suit on the contract in Jaipur (where the court also has jurisdiction) and
subsequently, files a suit in Mumbai. Is the subsequent suit in Mumbai liable to be stayed under
section 10 of the code? There was a conflict of judicial opinion which was set at rest by the
Supreme Court in Manoharlal v. Sheth Hiralal (AIR 1962), where it was held that the
language of section 10 is clear, definite and mandatory, and prohibits the trial of a subsequent
suit, and that it makes no difference that the earlier suit was filed in violation of the agreement
between the parties.
APPEAL AND REVISION
An appeal cannot be filed, if a suit is stayed under section 10 CPC. The order passed under
section 10 is relating to jurisdiction of a court so a petition for revision can be entertained. [P.C
Jairath v. Smt. Amrit Jairath AIR 1967 P&H]

OTHER PROVISIONS OF THE CODE REGARDING STAY OF SUITS

The following are other provisions in the Code relating to stay of suits.
1. In the case of a suit by a firm in the firm’s name, the defendant may demand disclosure
of the names and places of residence of the partners. If the plaintiff firm fails to comply
with such demand, the court may, upon an application for that purpose, stay all
proceedings in the suit: Order 30, Rule 2.
2. Where the plaintiff is a minor, then on the retirement, removal or death of his next
friend, further proceedings are to be stayed until the appointment of the next friend in
his place: Order 32, Rule 10.
3. Where any of the defendants in an interpleader 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, must on being informed by the court in which the interpleader suit has been
instituted, stay the proceedings as against him: Order 35, Rule 3.
4. The court has inherent power to stay-
i) A suit which is an abuse of its process
ii) Cross-suits, on the ground of convenience
iii) Any suit, even if it does not come under section 10 above.
5. A High Court has the power to stay a suit pending in a subordinate court section 151.

LATEST CASES
1. Desh Bhushan Das v. K.C Mahajan 1997- In order to apply section 10, the court in
which the previous suit is pending should have Jurisdiction to grant the relief sought in
the subsequent suit.
2. Ishwari Devi v. Sham Sunder 1999- The court is empowered to stay later suit and not
previous suit.
3. ECE Ltd v. Action Construction Equipment Pvt. Ltd 1999- There is nothing in
section 10 to show that if an issue of jurisdiction has been raised in previously instituted
suit, the defendant cannot invoke provision of section 10 in subsequent suits unless he
withdraws or waives that objection.
4. Indian Bank v. M.S Co-operative Marketing Federation Ltd. 1998- In view of the
object and nature of the provision the word “trial” in section 10 is not used in its widest
sense.