What are essential requirement for stay of subsequent suit U/S 10 of CPC?

 As observed earlier, for application of Section 10 of the Code, the matter in issue in both the suits have to be directly and substantially in issue in the previous suit but the question is what "the matter in issue" exactly means? As in the present case, many of the matters in issue are common, including the issue as to whether the plaintiffs are entitled to recovery of possession of the suit premises, but for application of Section 10 of the Code, the entire subject-matter of the two suits must be the same. This provision will not apply where few of the matters in issue are common and will apply only when the entire subject matter in controversy is same. In other words, the matter in issue is not equivalent to any of the questions in issue."{Para 12} (Emphasis supplied)

23. No doubt, both the decisions have underscored, as a "fundamental test", for the purposes of Section 10 of the CPC, being whether, on a final decision reached in the previous suit, such decision would operate as res judicata in the subsequent suit. Even so, both the decisions go on to observe that, in order for Section 10 to be applied, there must be complete identity of subject matter in both suits. It has been emphasized, in both the decisions, that the key expression in Section 10 are "directly and substantially in issue", which have been contra-distinguished from the expression "incidentally or collaterally in issue".

24. "Therefore", as held in both the decisions "Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject matter in both the proceedings is identical".

25. This aspect stands further clarified in Aspi Jal MANU/SC/0307/2013 : (2013) 4 SCC 333. In para 9 of the report in Aspi Jal MANU/SC/0307/2013 : (2013) 4 SCC 333, the Supreme Court has held that "the basic purpose and the underline object of Section 10 of the Code is to prevent the courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of "same cause of action, same subject matter and the same relief." As a result, the effort, as per the said decision, as "to pin down the plaintiff to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to protect the defendants from multiplicity of proceedings".

26. Interestingly, in Aspi Jal MANU/SC/0307/2013 : (2013) 4 SCC 333, the parties in all suits were the same. The courts in which the earlier suits had been instituted were competent to grant the relief sought in the latter suit. Even so, the Supreme Court observed that the issue remained to be adjudicated "as to whether the matter in issue is also directly and substantially an issue in previously instituted suit". Underscoring, once again, the importance of the expression "directly and substantially in issue", the Supreme Court went on to hold that, even if "many of the matters in issue are common, including the issue of whether the plaintiffs are entitled to recovery of possession of the suit premises, but for application of Section 10 of the Code the entire subject matter of the two suits must be the same". It was categorically held that Section 10 "will not apply where a few of the matters are common and will apply only when the entire subject matter of the controversy is same".

29. Apart from sameness of relief, the two other indicia, required to be cumulatively satisfied in order for the trial of a later suit to be stayed under Section 10, is identity of cause of action and identity of subject matter.

IN THE HIGH COURT OF DELHI

CM (M) 980/2022, 

Decided On: 16.09.2022

 Amita Vashisht   Vs. Tarun Vedi

Hon'ble Judges/Coram:

C. Hari Shankar, J.

Dated: MANU/DE/3526/2022

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Whether suits which are consolidated together will become one suit?

  Mr. Navare submitted that Pratap Reddy had also filed a suit

for declaration and possession being O.S. No.190/1985. All 3 suits

were clubbed together and heard together. However,

(i) consolidation of 3 suits does not convert 3 suits into one

action.

(ii) Consolidation of suits is for practical reasons such as,

saving costs, time and efforts of the parties,

convenience of the parties, avoiding repetitive

exercises in 3 suits and avoiding conflict of judgment in

the 3 suits. However, the 3 suits consolidated/clubbed

together retain their separate identity. In support of his

argument Mr. Navare cited Mahalaxmi Coop. Housing Society Ltd. and Ors. v. Ashabhai Atmaram Patel (D) thr. Lrs. and Ors.(2013) 4 SCC 404 [41]

{Para 49}

50. Mr. Navare emphatically argued that the right which have

accrued to Pratap Reddy, as a result of defective suits filed by the

Vendee, cannot stand abrogated by consolidation of the suits. There is no provision in the CPC which permits a party to be deprived of such accrued, right because of defects in the suit.

It is true that, the clubbing of suits for hearing them together and disposal thereof by a common judgment and order is for practical reasons. Such clubbing together of the suits do not convert the suits into one action as argued by Mr. Navare. The suits retain their separate identity as held in Mahalaxmi Coop. Housing Society Ltd. and Ors. v. Ashabhai Atmaram Patel (supra). The clubbing together is done for convenience, inter alia, to save time, costs, repetition of procedures and to avoid conflicting judgments.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3574 OF 2009

B. SANTOSHAMMA & ANR. Vs D. SARALA & ANR. 

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