What is distinction between O 7 R 10 of CPC(Return of plaint) and S 10 of CPC(Stay of suit)?

At the outset, it is necessary to note a submission, of Mr. Sai Deepak, that Order VII Rule 10, and Section 10, of the CPC, were required to be read together. This submission deserves, in my opinion, to be rejected even at this stage. A bare reading of Section 10, and Order VII Rule 10, of the CPC, reveals that the submission of Mr. Sai Deepak is, in fact, contrary to the statutory scheme, as contemplated in the said provisions. Section 10 deals with stay of a pending suit, and reads thus:

"10. 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 the suit in a foreign Court does not preclude the Courts in India from trying the suit founded on the same cause of action."

Order VII Rule 10, per contra, deals with "return of plaint", and reads thus:

"10. Return of plaint.-

(1) Subject to the provisions of rule 10A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.

Explanation.-For the removal of doubt, it is hereby declared that the Court of appeal or revision may direct, after setting aside the decree passed in the suit, the return of the plaint under this sub-rule.

(2) Procedure on returning plaint.-On returning of plaint, the Judge shall endorse thereon the date of its presentation and returned, the name of the party presenting it, and a brief statement of the reasons for returning it."

33. The plain words of Section 10, and Order VII Rule 10, of the CPC, disclose that they contemplate distinct eventualities, and envisage distinct consequences. Section 10 does not, in any manner, impact the maintainability of the suit, which is required to be stayed thereunder. The Supreme Court has, in National Institute of Mental Health & Neuro Sciences v. C. Parameshwara MANU/SC/1063/2004 : AIR 2005 SCC 242, held that Section 10 applies only where "the whole of the subject matter in both the suits is identical". The fundamental test, which would determine the applicability, or otherwise, of Section 10 has, in the said decision, been identified as "whether on final decision being reached in the previous suit, such a decision would operate as res judicata in the subsequent suit". The guiding philosophy, behind the provision is, quite obviously, the inadvisability of two courts dealing with identical disputes, between the same parties, concurrently. The progress of the later suit has, therefore, statutorily been required to await the outcome of the suit preferred earlier in point of time. As against this, Order VII Rule 10A specifically contemplates a situation in which the suit, imperilled by the provision, should not have been instituted in the court in which it was instituted. The provision, therefore, relates to the point of time, and the stage, when the suit was instituted in the court, in stark contradistinction with Section 10, which impedes the trial of the suit, but does not, even indirectly, visualize any lacuna in the institution of the suit. The consequence, of Section 10 being applicable to a particular case, is stay of the trial in that case. The plaint is not returned to the plaintiff, for institution elsewhere. As against this, Order VII Rule 10 stipulates that, where the suit was instituted in a court, in which it ought not to have been instituted, the plaint shall be returned to the plaintiff, for being instituted in the proper court. Invocation of Order VII Rule 10, therefore, results in removal, completely, of the suit, from the records of the court, where it was erroneously instituted, whereas invocation of Section 10 merely places the trial of the suit in, as it were, a state of suspended animation.

34. The contention of Mr. Sai Deepak that Section 10 and Order VII Rule 10 of the CPC are required to be read together is, therefore, fundamentally misconceived, and is accordingly rejected.

IN THE HIGH COURT OF DELHI

I.As. 2594, 2595, 2596, 4274 and 5209/2020 in CS (COMM.) 611/2019

Decided On: 15.07.2020

FMC Corporation  Vs. NATCO Pharma Limited

Hon'ble Judges/Coram:

C. Hari Shankar, J.

Citation: MANU/DE/1380/2020

Print Page

Supreme Court: Court to conduct suit de novo after return of plaint

 Modern Construction (supra), referred to the consistent
position in law by reference to Ramdutt Ramkissen Dass vs.
E.D. Sassoon & Co., Amar Chand Inani vs. The Union of
India, Hanamanthappa vs. Chandrashekharappa, (1997) 9
SCC 688, Harshad Chimanlal Modi (II) (supra) and after also
noticing Joginder Tuli (supra), arrived at the conclusion as
follows:
“17. Thus, in view of the above, the law on the
issue can be summarised to the effect that if
the court where the suit is instituted, is of the
view that it has no jurisdiction, the plaint is to
be returned in view of the provisions of Order 7
Rule 10 CPC and the plaintiff can present it
before the court having competent jurisdiction.
In such a factual matrix, the plaintiff is
entitled to exclude the period during which he
prosecuted the case before the court having no
jurisdiction in view of the provisions of Section
14 of the Limitation Act, and may also seek
adjustment of court fee paid in that court.
However, after presentation before the court of
competent jurisdiction, the plaint is to be
considered as a fresh plaint and the trial is to
be conducted de novo even if it stood
concluded before the court having no
competence to try the same.”

Joginder Tuli (supra) was also noticed in Harshad
Chimanlal Modi (II) (supra) but distinguished on its own facts.
17. We find no contradiction in the law as laid down in Modern
Construction (supra) pronounced after consideration of the law
and precedents requiring reconsideration in view of any conflict
with Joginder Tuli (supra). Modern Construction (supra) lays
down the correct law. We answer the reference accordingly.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 2904 OF 2020

M/S. EXL CAREERS  Vs  FRANKFINN AVIATION SERVICES  PRIVATE LIMITED 

NAVIN SINHA, J.
Dated: August 05, 2020

Citation: 2020(5) MHLJ 358

Print Page

Bombay HC: When subject matter of suit is beyond jurisdiction of court, plaint must be rejected and not returned under O 7 R 10 of CPC

On perusal of the judgment delivered by the Division Bench in case of

Lt.Col.Anil Bhat & Ors. (supra), it is clear that once the court has not returned the

plaint on the ground of lack of pecuniary or territorial jurisdiction of that court but

had come to the conclusion that the court did not have jurisdiction to entertain

such suit on the ground that subject matter of the suit was beyond the jurisdiction

of that court, such court could not have passed an order for return of plaint but

ought to have dismissed the suit on the ground of lack of jurisdiction. In my view,

Mr.Colabawala, learned counsel appearing for the plaintiff is right in his

submission that the order passed by the City Civil Court for return of the plaint

itself was contrary to the law laid down by the Division Bench of this court.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

NOTICE OF MOTION NO. 1085 OF 2011

IN

S.C.SUIT NO. 2393 OF 2001

Asif Ahmedally porbunderwalla  Vs Mrs. Daulat Akbarali Porbunderwalla,)

Citation;2014(1) ALLMR378 Bom,2014(2) MHLJ210 Bom

CORAM : R.D. DHANUKA, J.

DATED : 22nd AUGUST, 2013

Print Page