Whether S 10 of CPC relating to stay of suit bars the court to entertain subsequent suit and to pass interlocutory orders in that suit?

By virtue of Section 10 Code of Civil Procedure, a Court is prohibited from proceeding with trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit, of course, subject to other conditions mentioned therein. This Court has explained that the object of the prohibition contained in Section 10 Code of Civil Procedure is to prevent the Courts of concurrent jurisdiction from simultaneously trying two parallel suits and to avoid inconsistent findings. However, this Rule of procedure is held not affecting the jurisdiction of the Court to entertain and deal with the latter suit and does not create a bar to the institution of the suit. The Courts have also consistently held that Section 10 Code of Civil Procedure does not create a bar to the passing of interlocutory orders including those of injunction. These principles are succinctly summarised by this Court in the case of Indian Bank v. Maharashtra State Cooperative Marketing Federation Ltd. MANU/SC/0350/1998 : (1998) 5 SCC 69. Therein, this Court was, of course, considering the applicability of bar Under Section 10 to summary suit Under Order XXXVII of Code of Civil Procedure but, while explaining the connotation of the expression "trial" in Section 10 Code of Civil Procedure, observed as under: {Para 17}

8. Therefore, the word "trial" in Section 10 will have to be interpreted and construed keeping in mind the object and nature of that provision and the prohibition to "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". The object of the prohibition contained in Section 10 is to prevent the courts of concurrent jurisdiction from simultaneously trying two parallel suits and also to avoid inconsistent findings on the matters in issue. The provision is in the nature of a Rule of procedure and does not affect the jurisdiction of the court to entertain and deal with the latter suit nor does it create any substantive right in the matters. It is not a bar to the institution of a suit. It has been construed by the courts as not a bar to the passing of interlocutory orders such as an order for consolidation of the latter suit with the earlier suit, or appointment of a receiver or an injunction or attachment before judgment. The course of action which the court has to follow according to Section 10 is not to proceed with the "trial" of the suit but that does not mean that it cannot deal with the subsequent suit any more or for any other purpose. In view of the object and nature of the provision and the fairly settled legal position with respect to passing of interlocutory orders it has to be stated that the word "trial" in Section 10 is not used in its widest sense.

18. The above principles of law, with necessary variations, when applied to the present case, lead to the position that even if final determination of the question of maintainability (in case the constitutional validity of the impugned provision is to be decided) may depend upon the decision of Larger Bench, the supplemental proceedings in the present suit, particularly those relating to the prayer of interim relief, cannot be put on hold.

IN THE SUPREME COURT OF INDIA

Original Suit No. 1 of 2021

Decided On: 11.05.2023

State of Meghalaya Vs. Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

Dinesh Maheshwari and P.V. Sanjay Kumar, JJ.

Citation:  MANU/SC/0559/2023.

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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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Can the court stay the subsequent suit if the cause of action and the reliefs claimed in both cases differ?

I do not know why the learned Chief Justice used the expression 'cause of action', because Section 10 speaks of not 'cause of action' but of 'matter directly and substantially in issue'. It is also not clear how two persons, quarrelling over the same transaction and bringing separate suits with respect to it against each other, can have the same 'cause of action'.

I am unable to see that the matter in issue in the two suits might not yet be substantially the same, though different reliefs might have been claimed by the two different plaintiffs on the basis of their respective cases. It is true that no written statement has yet been filed in the Calcutta suit, but what the defence in the Calcutta suit will be is fairly clear from the plaint in the Bombay suit itself as also the application made to this Court by Modi. If the Calcutta plaintiff's defence in the Bombay suit is substantially his plaint in the Calcutta suit and if the Bombay plaintiff's 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 impossible. The basis of the defence in the Bombay suit and the basis of the claim in the Calcutta suit appear to be both fraudulent misrepresentation and if the defence succeeds in Bombay, nothing will be left of that suit and, similarly, if in consequence the case of misrepresentation succeeds in Calcutta, this suit will be practically decided, the only, enquiry remaining being an enquiry as to the damages claimed in addition to a refund of the money paid. Similarly, again, if the defence fails in the Bombay suit, the basis of the Calcutta suit will be wholly destroyed. In my view, the principal matter in issue in the Calcutta suit is directly and substantially in issue in the Bombay suit, which is a suit previously instituted and that an un-necessary duplication of proceedings with the possibility of conflicting decisions being rendered will occur, if the Calcutta suit is not stayed.

 IN THE HIGH COURT OF CALCUTTA

A.F.O.D. No. 64 and A.F.O.O. No. 80 of 1955

Decided On: 01.03.1957

Shorab Merwanji Modi and Ors. Vs. Mansata Film Distributors and Ors.

Hon'ble Judges/Coram:

P.B. Chakravartti, C.J. and Sarkar, J.

Author: P.B. Chakravartti, C.J.

Citation: AIR 1957 Cal 727,MANU/WB/0188/1957

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Should the court stay subsequent proceeding if the decision passed in the previous suit will be res judicata in the subsequent suit?

Section 10 says:

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 British India having jurisdiction to grant the relief claimed....

3. The section nowhere states that the subject-matter of both the suits must be the same, and in a Calcutta case reported in Sm. Jinnat Bibi v. Howarah Jute Mill Co. Ltd. MANU/WB/0070/1932 : AIR1932Cal751 , it was clearly pointed out that the section makes no reference to the subject-matter or the cause of action and that the test of the applicability of Section 10 to a particular case is whether on a final decision being reached in the previous suit such decision would operate as res judicata in the subsequent suit.

 IN THE HIGH COURT OF NAGPUR

 Krishnarao Namdeorao  Vs. Shridhar Ramchandra Kale

Coram: Puranik, J.

Decided On: 12.07.1946

Citation: AIR 1947 Nagpur 154,MANU/NA/0080/1946

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Whether court can suo moto stay subsequent suit as per S 10 of CPC?

 So far as the contention of learned counsel for the

petitioner that the learned Trial Court failed to consider that

under Section 10 of the C.P.C. for stay of suit, the application is

required to be filed in the same suit and in the instant case,

the application was filed in other suit while the trial Court has

directed for stay of petitioner's suit, therefore, the Court below

erred in exercising the powers under Section 10 of the C.P.C, is

concerned, in Munnilal Vs. Sarvajeet AIR 1994 Rajasthan

22, it has been held that the Court can suo motu the stay the

second suit under Section 10 of the C.P.C. So it is clear that to

exercise of power under Section 10 of the C.P.C., an application

is not required.{Para 18}

Law laid down : To exercise of power under Section10 of the C.P.C., an application is not required to be filed.

THE HIGH COURT OF MADHYA PRADESH

Misc. Petition No. : 600 of 2019

 Smt. Pooja Soni  Vs  Dinesh Kumar 

Bench : Hon'ble Shri Justice Rajendra Kumar (Verma)

Dated: 12 /11/2021

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Supreme Court: Court can entertain interlocutory applications in stayed suit

The learned Counsel for the respondents stated that on account of the stay of the suit, his clients are prevented to take any direction or order by way of interlocutory application. The stay of the trial of the suit does not preclude the respondents to seek such appropriate interlocutory reliefs as may be available and warranted in the facts and circumstances.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 11192 of 1995

Decided On: 16.11.1995

Amita Kaushish Vs. Sanjay Kaushish and Ors.

Hon'ble Judges/Coram:

K. Ramaswamy and B.L. Hansaria, JJ.

Citation: 1996 SCC (7) 19, JT 1995 (8) 507,MANU/SC/1333/1996

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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

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Whether eviction suit filed by landlord should be stayed if moratorium has been declared in Insolvency proceeding?

This G.A. No.2791 of 2017 has been filed by the defendant

in a suit for recovery of khas possession and for mesne profit, praying for

stay of all further proceedings in C.S. No.247 of 2010 on the ground that an

insolvency proceeding has started under Section 10 of the Insolvency and

Bankruptcy Code, 2016 (hereinafter referred to as the ‘said Code’). Although,

no affidavit-in-opposition has been filed to the application filed by the

defendant/petitioner. Mr. Deb Nath Ghosh, Learned Counsel appearing for

the plaintiff/respondent submits that the order passed at the instance of the

defendant/petitioner by the authority under the Insolvency Code (hereinafter

referred to as the ‘said Code’) has no manner of application in the present

case. He submits that according to the provisions of Section 14 of the said

Code where moratorium has been declared, at the highest, the execution of

the proceeding can be stayed. He submits that Section 14(1) (d) of the said

Code is relevant for the present purpose which says that only recovery of any

property by an owner or lessor where the property is occupied by or in the

possession of the corporate debtor, is prohibited. Therefore, according to

him, there can be no order staying further proceeding of the present suit. He

further submits that Section 18 (1) (f) of the said Code which relates to the

duties of interim resolution professional, specifies that the interim resolution

professional shall perform duties amongst other to take control and custody

of any asset over which the corporate debtor has ownership rights as

recorded in the balance-sheet of the corporate debtor. Section 18(1) (f) is set

out below :

“18. Duties of interim resolution professional. – (1) The interim

resolution professional shall perform the following duties, namely:—

…

3

(f) take control and custody of any asset over which the corporate

debtor has ownership rights as recorded in the balance sheet of the

corporate debtor, or with information utility or the depository of

securities or any other registry that records the ownership of assets

including—

(i) assets over which the corporate debtor has ownership

rights which may be located in a foreign country;

(ii) assets that may or may not be in possession of the

corporate debtor;

(iii) tangible assets, whether movable or immovable;

(iv) intangible assets including intellectual property;

(v) securities including shares held in any subsidiary of the

corporate debtor, financial instruments, insurance

policies;

(vi) assets subject to the determination of ownership by a

court or authority;”

Mr. Ghosh, learned Counsel for the plaintiff/respondent submits that

admittedly, the defendant is a corporate debtor, who has got no ownership

right in respect of the suit property for which recovery has been sought for

by the plaintiff/respondent. According to him, if the interim resolution

professional cannot take control and custody of any asset over which the

corporate debtor has no ownership rights, mere appointment of interim

resolution professional cannot stand in the way of proceeding with the suit

where admittedly, the defendant, although, is a corporate debtor but not the

owner of the suit property. According to him, the suit should proceed and

there cannot be any stay. Mr. Ghosh, learned Counsel has also drawn

attention of this Court to the preamble to the Act and submits that the Act is

of very recent origin and there cannot be any provision in the law to interfere

with his independent right for eviction of a tenant guaranteed under some

other law and if that is allowed the same will tantamount to interference with

his Constitutional Right to Property Protected under Article 300A of the

Constitution of India. Therefore, there can be no proposition of law to hold

that an owner or a landlord is debarred from proceeding with a suit against

his tenant in respect of whom an insolvency proceeding is pending.

A question often arises whether the right guaranteed under the rent

legislation by which a landlord is empowered to evict a tenant on certain

given circumstances whether by virtue of the provisions of the Insolvency

Code such rights of the landlord or landlady be allowed to be suspended.

However, in view of the provisions made under Section 238 of the Insolvency

Code such right can obviously be suspended inasmuch as provisions of the

Code shall have effect notwithstanding anything consistent therewith

contained in any other law for the time being in force or any instrument

having effect by virtue of any such law. In that view of the matter it will not

be unreasonable to hold that provisions of the Code will have overriding

effect on the provisions of rent legislation.

 Sub-Section (1) (a) of Section 14 clearly

prohibits institution of suits or continuation of pending suits or proceeding

against the corporate debtor including execution of any judgment, decree or

order in any Court of law, Tribunal, arbitration panel or other authority.

Therefore, when the said Code prohibits institution and/or continuation of a

suit or proceeding, I find no reason to allow the plaintiff to proceed with the

suit. The submission on behalf of the plaintiff that only restriction for stay of

execution has been created under Section 14(1) (d) of the said Code, does not

appear to be logical at all. It depends upon the circumstances where the

parties stand, if it is before the institution of the suit then the suit cannot be

instituted, if it is in the midst of the suit then the suit cannot be continued

and if the suit has been decreed then the execution should not be allowed to

continue. However, it has been clearly submitted by the learned counsel

appearing for the plaintiff/respondent that this Court can proceed with the

trial of the suit but at best the plaintiff can be restrained from proceeding

with the execution. Such submission may be considered to be fair but

cannot be accepted, inasmuch as, before a suit is tried it cannot be

presumed whether the suit will be decreed or dismissed. Such a question

can arise only after the suit is decreed but this Court has not yet reached

such stage and if admittedly a decree cannot be executed there is no reason

to allow the suit to proceed which may lead to multiplicity of proceedings.

IN THE HIGH COURT AT CALCUTTA

ORDINARY ORIGINAL CIVIL JURISDICTION

ORIGINAL SIDE

GA 2791 of 2017

WITH

CS 247 of 2010

KANAK PROJECTS LIMITED VS STEWARTS & LLOYDS OF INDIA LIMITED

BEFORE :

THE HON’BLE JUSTICE SAHIDULLAH MUNSHI

Dated: SEPTEMBER 11,2017

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Whether subsequent suit can be stayed if application for setting aside exparte decree is pending?

 The object behind enacting Section" 10 of CPC would be that in regard to same property and issues involved between the same party, conflicting findings may not come by the courts. In the present case, the suit filed by the respondent herein has already been decided by ex parte judgment and decree dated 7.4.2003 and only an application under Order 9 Rule 13 is pending adjudication. The question which arises for consideration by this Court is whether mere pendency of an application under Order 9 Rule 13 CPC would tantamount to pendency of suit in the court. In view of this Court, since Original suit no. 487 of 2002 filed by the defendant has been decided by ex-parte judgment and decree dated 7.4.2003, therefore, an application filed by the plaintiffs for setting aside the ex-parte decree cannot be treated as pendency of suit. Thus, the learned revisional court has committed. illegality in allowing the revision partly and in deciding issue no. 3 in favour of defendant and staying the proceedings of original suit no. 49 till the decision in misc. application no. 67 of 2003 under Order 9 Rule 13 CPC.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (M/S) No. 964 of 2015

Decided On: 05.04.2019

Cooper Pharma  Vs.  Shamshad Ahmad

Hon'ble Judges/Coram:

Lok Pal Singh, J.

Citation: AIR 2019 Uttar 111

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Whether second suit filed under Transfer of property Act is to be stayed if first suit under rent Act is pending?

 I am fortified in my view by a decision of this Court in R.E. Fanibunda v. Nicholas of India Ltd. reported in 2003 (3) All 967 wherein this Court has explained what is the ratio of the decision of the Supreme Court in the case of Ambalal Sarabhai Enterprises Ltd. supra. In that case a landlord had filed a suit for eviction of a tenant on 9th June, 1977 on the ground of reasonable and bonafide requirement under the provisions of the Bombay Rent Act. The trial Court decreed the suit by a judgment dated 12th July, 1990 and the appellate Court set aside the decree. The appellate judgment was challenged by the landlord by filing a Writ Petition. During the pendency of the writ petition, the landlord filed another suit for eviction under the general law - Transfer of Property Act- as by then the provisions of Bombay Rent Act, 1947 had been repealed and the provisions of the Maharashtra Rent Act were not applicable to the tenant being a public limited company with a paid up capital of more than rupees one crore. At the hearing of the writ petition challenging the judgment of the appellate Court rendered under the provisions of the Bombay Rent Act, an objection was raised to the maintainability of the petition on the ground that the landlord had filed another suit under the general law and therefore the Writ Petition could not be continued. Relying upon the decision of the Supreme Court in Ambalal Sarabhai Enterprises v. Amrutlal (supra) it was contended that the landlord cannot pursue two parallel proceedings for the same reliefs. Negativing the objection, the court held that though the relief of possession claimed in both the suits was the same the causes of action for the two suits was entirely different. The cause of action for possession in the first suit was existence of a ground for eviction under the Bombay Rent Act while the cause of action for the second suit under the general law was only termination of the tenancy either by efflux of time or by notice. Existence of a ground under the Bombay Rent Act was not necessary for the second suit under the general law. The learned Judge therefore held that the two proceedings were not parallel as they were based on different cause of action and therefore there was no question of choosing between the two parallel proceedings. In Ambalal Sarabhai's case the Supreme Court has observed that a litigant cannot be permitted to take recourse to two parallel proceedings. In other words, two proceedings which are not parallel are permitted. This Court held that the two proceedings one for eviction under the provisions of the Bombay Rent Act and the other under the general law - Transfer of Property Act filed after repeal of the Bombay Rent Act were not parallel and were allowed to be continued and proceeded with simultaneously.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 58 of 2004

Decided On: 06.07.2004

 Godrej and Boyce Mfg. Co. Ltd.  Vs. Sridhar Jagannath Nerurkar

Hon'ble Judges/Coram:

D.G. Karnik, J.

 Citations: 2005 (1) BomCR 839, 2005 (1) MhLj 1097,2005(1) ALLMR 128

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Notes on Stay of Suit S 10 CPC

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 a suit in a foreign court does not preclude the Courts in 28[India] from trying a suit founded on the same cause of action.

Read judgments on stay of suit: Click here

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Questions and answers on law(Part 1)

1)Doctrine behind S 27 of evidence Act
Ans:In the matter of: Navaneethakrishnan V/s The State by Inspector of Police, Criminal Appeal No. 1134/2013 (Supreme court of India, Date of Decision: 16.04.2018, Coram: A.K. Sikri & R.K. Agrawal, JJ.) it was held that, Section 27 of the Indian Evidence Act, 1872 incorporates the theory of confirmation by subsequent facts, that is, statements made in police custody are admissible to the extent that they can be proved by subsequent discovery of facts. Discovery statements made under Section 27 of the Indian Evidence Act, 1872 can be described as those which furnish a link in the chain of evidence needed for a successful prosecution.
2) What is victimless Crime?

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Supreme Court:Stay order granted by Supreme Court will not vacate on expiry of six month

We are constrained to pen down a more detailed
order as the judgment of this Court in Asian
Resurfacing of Road Agency’s case (supra) is sought
to be relied upon by difference courts even in
respect of interim orders granted by this Court
where the period of 6 months has expired. Such a
course of action is not permissible and if the

interim order granted by this Court is not vacated
and continues beyond a period of 6 months by reason
of pendency of the appeal, it cannot be said that
the interim order would automatically stand vacated.
Thus, the interim order granted by this Court
on 20th March, 2009 must continue to be in force
till the appeal is decided.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A. NO . 27524 OF 2019
IN
CIVIL APPEAL No(s). 6088 OF 2011

FAZALULLAH KHAN  Vs  M.AKBAR CONTRACTOR 

Dated: JULY 22, 2019.

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Whether court can stay suit proceeding as per S 151 of CPC?

Thus, section 10 of the Code bars the court from proceeding 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. The object of the section is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. Thus, section 10 of the Code specifically provides for the contingencies under which a subsequent suit can be stayed, viz., (i) where the issue is also directly and substantially in issue in a previously instituted suit; (ii) such suit is between the same parties, or between parties under whom they or any of them claim litigating under the same title; (iii) 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. There is no other provision in the Code which provides for stay of the suit by the court where the suit is instituted. Section 10 of the Code clearly exhausts the contingencies in which such power can be exercised. Therefore, if powers under section 151 of the Code are exercised, the same would clearly be in conflict with what had been expressly provided in section 10 of the Code and against the intentions of the legislature. Considering the scheme of the Code, it is apparent that the legislature intended the provisions of section 10 to be exhaustive insofar as the prohibition against proceeding with the subsequent suit is concerned. Therefore, the exercise of inherent powers under section 151 of the Code to stay the proceedings in contingencies not contemplated under section 10 of the Code would be against the legislative intention and against the interests of justice. Under the circumstances, the petitioner is not entitled to relief claimed in the application either under section 10 or section 151 of the Code.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/Special Civil Application No. 20580 of 2018

Decided On: 21.01.2019

HDFC Bank Limited Vs.  Ashima Limited

Hon'ble Judges/Coram:

Harsha Devani and Dr. A.P. Thaker, JJ.

Citation: AIR 2019 Guj 64

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Whether court can impose condition to implead legal heirs while staying subsequent suit?

 The basic purpose of this section is to protect a person from multiplicity of proceedings as also to avoid conflict decisions. Section 10 CPC is an independent provision. The same is untrammeled by any provision of CPC. Provisions of Section 10 and Order 22 Rules 3 & 4 CPC operate in different field. They embrace the fields which are covered by the conditions embodied therein. The provisions of Order 22 CPC do not in any way circumscribe or limit the operation of Section 10 CPC. If the conditions enumerated in Section 10 CPC are satisfied, then the Court shall stay the further proceeding of the suit. Whether the suit will fail or abate, it is not the determining factor for deciding the application u/s. 10 CPC. While deciding the application u/s. 10 CPC, the Court cannot impose any condition.

IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP No. 987 of 2014

Decided On: 05.12.2018

 Binapani Jethi  Vs. Bijay Kumar Jethi and Ors.

Hon'ble Judges/Coram:

Dr. Akshaya Kumar Rath, J.

Citation: AIR 2019 Orissa 17

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Supreme court: Trial of Civil / criminal cases can not be stayed for more than six months

 In view of above, situation of proceedings remaining pending for long on account of stay needs to be remedied. Remedy is required not only for corruption cases but for all civil and criminal cases where on account of stay, civil and criminal proceedings are held up. At times, proceedings are adjourned sine die on account of stay. Even after stay is vacated, intimation is not received and proceedings are not taken up. In an attempt to remedy this, situation, we consider it appropriate to direct that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order such stay is extended. In cases where stay is granted in future, the same will end on expiry of six months from the date of such order unless similar extension is granted by a speaking order. The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized. The trial Court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence unless order of extension of stay is produced.

In the Supreme Court of India

CRIMINAL APPELLATE JURISDICTION

(Before Adarsh Kumar Goel, Navin Sinha and R.F. Nariman, JJ.)

Criminal Appeal Nos. 1375-1376 of 2013

Asian Resurfacing of Road Agency Pvt. Ltd. v.  Central Burueau of Investigation .

Decided on March 28, 2018

Citation: 2018 SCCONLINE SC 310

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Good article on Res Judicata, stay of suit and estoppel

Res Judicata

S 11 of CPC embodies the important doctrine of res judicata. It provides that 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 under whom they or any of them,litigating under the same title) in a competent court, and has been heard and finally decided by such a court.

Explanations:

1)The former suit means suit which has been decided prior to the suit in question, whether or not it was instituted prior thereto.

2)Any relief claimed in the plaint which is not expressly granted by the decree is deemed to have been refused.

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Whether subsequent eviction suit is liable to be stayed if both suits have same grounds for eviction?

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. As stated earlier, the eviction in the third suit has been sought on the ground of non-user for six months prior to the institution of that suit. It has also been sought in the earlier two suits on the same ground of non-user but for a different period. Though the ground of eviction in the two suits was similar, the same were based on different causes. The Plaintiffs may or may not be able to establish the ground of non-user in the earlier two suits, but if they establish the ground of non-user for a period of six months prior to the institution of the third suit that may entitle them the decree for eviction. Therefore, in our opinion, the provisions of Section 10 of the Code is not attracted in the facts and circumstances of the case.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2908 of 2013 (Arising out of S.L.P. (C) No. 14808 of 2012)

Decided On: 05.04.2013

 Aspi Jal and Anr. Vs. Khushroo Rustom Dadyburjor

Hon'ble Judges/Coram:

C.K. Prasad and V. Gopala Gowda, JJ.

Citation: AIR 2013 SC 1712,(2013) 4 SCC333,2013(5) MHLJ147 SC

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Whether succession certificate proceedings can be stayed till decision of civil suit?

Undisputed facts of the case are that the petitioner has initiated the proceedings as per the provisions prescribed under Section 372 of the Indian Succession Act, 1925 (hereinafter referred to as 'the Act, 1925') for grant of succession certificate with regard to the service dues of late Jagarniya as she is her sole legal heir. During its pendency, a civil suit bearing Civil Suit No. 62-A of 2016 was instituted by the petitioner for declaration of title and injunction with regard to the immovable property left by said Jagarniya.
 During the pendency of aforesaid proceedings, the petitioner has moved an application under Section 10 of the CPC, for staying the said succession proceedings till decision of the said civil suit.
 Upon due consideration of the said application, the trial Court by its order impugned dated 26.9.2016 has rejected the said application on the ground that as per the provision of Section 10 of the CPC, only the suit could be stayed and not the proceeding initiated under the Act, 1925. The trial Court has observed further that since both the proceedings are different with each other, therefore, the application as filed is liable to be rejected. In consequence the said application filed under Section 10 of the CPC is rejected.
 In any case, the provision of Section 10 of the CPC would be attracted only when the decision of a suit operates as a res judicata in a subsequently instituted suit. The nature of both the matters are not only entirely different with each other but the jurisdiction of the Courts are also different. In such circumstances, the principles of res judicata would also not be attracted, so as to stay the proceedings initiated under the Act, 1925.
On the basis of the precedent as well as the principle, it has become evident that the proceedings, in a regular suit and the proceedings which are summary in nature contemplated by Section 372 of the Act, 1925 are entirety different and the latter proceedings would not be covered by Section 10 of the CPC. The object of issuance of a certificate and its effect is entirely different which would not result into deciding the issue finally between the parties. Consequently, the orders impugned as passed by the Courts below deserve to be and are hereby affirmed.
IN THE HIGH COURT OF CHHATTISGARH

Writ Petition No. 190 of 2017

Decided On: 09.03.2017

 Hirman Bai Vs. Divisional Forest Officer, Koriya Forest Division and Ors.

Hon'ble Judges/Coram:
Sanjay K. Agrawal, J.

Citation: AIR 2017 Chhatis 117

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When partition suit is liable to be stayed pending decision in probate proceeding?

Reverting to the facts of the case and keeping in view
the aforesaid principles, this Court finds that the suit schedule
property is the subject-matter of dispute in the partition suit as
well as probate proceeding. The jural relationship amongst the
parties inter se is finally decided in the preliminary decree. The
decision in the probate proceeding on the question of proof of 
‘Will’ will have a direct impact on the suit. The decision in the
partition suit would also operate as res judicata in the probate
proceeding. In such contingency, when both the proceedings are
pending, the suit for partition shall remain stayed till disposal of
probate proceeding.
HIGH COURT OF ORISSA: CUTTACK
C.M.P. No.619 of 2015

Ashok Kumar Ray 
V
Smt.Reba Biswas and others 

PRESENT:
THE HON’BLE DR. JUSTICE A.K.RATH
Dated :04.01.2017.
Citation: AIR 2017 Orissa 48

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