Professional Documents
Culture Documents
OF
ADVANCED
OF
SUIT
UNDER
TABLE OF CONTENTS
I.
INTRODUCTION.................................................................................- 1 -
II. INGREDIENTS OF THE SECTION.........................................................- 1 III. SUIT...................................................................................................- 1 IV. DIRECTLY AND SUBSTANTIALLY SAME SUBJECT MATTER...................- 2 V. SAME PARTIES...................................................................................- 2 VI. STAY OF PROCEEDINGS.....................................................................- 2 VII. STAGE OF APPLCATION......................................................................- 3 VIII. MISCALLANEOUS..............................................................................- 3 IX. IMPORTANT CASE LAWS.....................................................................- 4 A.
Indian
Bank
v.
Maharashtra
State
Cooperative
Marketing
Federation Ltd..............................................................................................................- 4 B.
M/s. Gupte Cardiac Care Centre and Anr v. Olympic Pharma Care
Pvt. Ltd............................................................................................................................- 5 C.
D............
Parameshwara........................................................................................- 6 E.
F.
Sagar Shamsher Jang Bahadur Rana v. The Union Of India And Ors.-
8X. CONCLUSION.....................................................................................- 9 -
I.
INTRODUCTION
Section 10 of the Civil Procedure Code imposes a duty on the court to stay
the proceedings when a similar matter is pending in another court. It does
not operate as a bar to the institution of the subsequent suit. It is only the
trial of the suit that is not to be proceeded with. 1 However it is to be noted
that this section enacts merely a rule of procedure and a decree therefore
passed in contravention of it is not a nullity and cannot be disregarded in
execution proceedings.2 The basic object of the provision is to save the
parties from multiplicity of proceedings and to avoid courts exercising
concurrent jurisdiction which may result in conflicting decisions. 3 It
incorporates the principle of res sub judis distinct from res judicata.
II.
III.
SUIT
IV.
For the application of the section not only that the matter in issue in the
second suit should also be directly and substantially in issue in the first
suit, but that the second suit must be for the same relief as that claimed
in the first suit.7 However the fundamental test is whether the final
decision in the former suit would operate as res judicata in the subsequent
suit.8 Matters in issue in both the suit need not be identical. It is enough, if
they are substantially the same.9
V.
SAME PARTIES
mere addition or absence of parties provided the substantial issue has not
changed does not preclude the power of court under this section.
VI.
STAY OF PROCEEDINGS
An order under this section can be passed at any stage of the suit.
Generally it is the subsequent suit which will be stayed. Nevertheless
factors such as which is the place where most of the evidence is available,
convenience of the parties and witnesses, which one of the two places is
more convenient to access and attend and so on may persuade the court
to direct a transfer of case in departure from the above rule by invoking
discretionary jurisdiction for ends of justice provided under Section 25 of
CPC.11 But only the appellate court having supervisory jurisdiction can
exercise this power.
VII.
STAGE OF APPLCATION
VIII. MISCALLANEOUS
Section 10 does not prevent the court in taking steps such as passing of
interlocutory orders to keep the stayed proceedings alive. 13 In a summary
10 Ashok Kumar Yadav v Noble Designs Pvt Ltd, AIR 2006 Cal 237
11 GC Care Centre and Hospital v OP Care Pvt Ltd, AIR 2004 SC 2339
12 Shri Ram Tiwary v Bholi Devi, AIR 1994 Pat 76.
13 Rameshwar v Fifth Addl Disrict Judge, Basti, AIR 1999 All 1
suit special procedure is provided in O 37. The trial really begins after the
court or the judge grants leave to the defendant to contest the suit.
Therefore, the court or the judge dealing with the summary suit can
proceed unto the stage of hearing the summons for judgment and passing
the judgment in favour of the plaintiff if: (i) the defendant has not applied
for leave to defend, or if such application has been made and refused; or
if, (ii) the defendant who is permitted to defend fails to comply with the
conditions on which the leave to defend is granted.14
In cases not covered by the provisions of s 10 of the Code of Civil
Procedure in terms, the court may, in very exceptional circumstances,
stay a suit under s 151 invoking the inherent jurisdiction of the court to
make orders ex debito justitiae but, the court cannot overlook the wellsettled principle of law governing the stay of suits.15 More appropriate
action would be consolidating the cases as section does not bar the power
of the court to consolidate for the purpose of hearing an earlier suit and a
later suit.16
IX.
Facts of the Case: Appellant filed Summary in the Bombay High Court
under Order 37 of the Code against the Respondent for obtaining a decree
for Rs.49, 659,160. The Respondent appeared before the Court and took
out Notice of Motion seeking stay of the summary suit on the ground that
it has already instituted a suit against the Bank for recovery of Rs. 3, 70,
52,217.88 prior to the filing of the summary suit. Single Judge of the
Bombay High Court, who heard the summons for judgment and the Notice
of Motion, held that the concept of trial as contained in Section 10 of the
Code is applicable only to a regular/ ordinary suit and not to a summary
suit filed under Order 37 of the Code and, therefore, further proceedings
under Summary Suit were not required to be stayed. Division Bench set
aside the judgment holding that the term trial is used in a wider sense.
Hence this SLP was filed.
Point of Law: Rule 2 of Order 37 enables the plaintiff to institute a
summary suit in certain cases. In classes of suits where adopting
summary procedure for deciding them is permissible the defendant has to
file an appearance within 190 days of the service of summons and apply
for leave to defend the suit. The stage of determination of the matter in
issue will arise in a summary suit only after the defendant obtains leave.
The trial would really begin only after leave is granted to the defendant.
Therefore, the Court or the Judge dealing with the summary suit can
proceed up to the stage of hearing the summons for judgment and
passing the judgment in favour of the plaintiff if (a) the defendant has not
applied for leave to defend or if such application has been made and
refused or if (b) the defendant who is permitted to defend fails to comply
with the conditions on which leave to defend is granted
Decision: High Court can proceed under the summary procedure up to
the stage as mentioned above. Therefore, the Appeal was allowed.
Facts of the case: The plaintiffs were owners of the building of which the
defendant had occupied one of its flats as tenants. The plaintiff filed 3
18 (2004) 6 SCC 756
19 (2013) 4 SCC 333
suits. First suit: suit for eviction from the tenanted premises against the
defendant before the Small Causes Court on the ground of bona fide
requirement
for
self-occupation
and
acquisition
of
alternate
Decision: High Courts Judgement was set aside. Special leave was
granted
E. Laxmi Fruit Co. v. Gainda Ram & Co21
Bench: Single Bench
Facts of the Case: Plaintiff filed a suit on 19.08.80 against the
respondent for rendition of account at Dabwali. Subsequently, respondent
filed a suit for recovery of a sum of Rs. 8301.15 against the petitioner in
Delhi. Trial court of Delhi refused to stay the suit finding that the two suits
are of different subject matter. Petitioner has filed the present revision
petitioner against that order.
Point of Law: Cause of action in the two suits may be different and the
matters in issue in the two suits may be substantially the same. For stay
of suit under Section 10 of the Code it is not necessary that the two cases
should be identical and it is enough if the matters in issue in both are
substantially same.
Decision: If the respondent succeeds in proving that the accounts were
settled the petitioner's suit at Dabwali may fail and consequently the
respondent may be entitled to a decree for money against the petitioner
in the suit at Delhi. In case it is held that the accounts were not rendered,
the respondent may be directed to render accounts in the suit at Dabwali
and the respondent will have to prove the various allegations contained in
the suit at Delhi.
Thus the substantial issue in the suit at Delhi is: whether the accounts
between the parties stood settled? This question is also directly and
substantially in issue between the parties in the suit at Dabwali. Court in
Dabwali is competent to decide on the issue at Delhi. Therefore, Revision
petition allowed.
10
X.
11
CONCLUSION
The rule of res judicata is readily distinguished from the rule in s 10 for the
latter relates to a res sub judice, that is, a matter which is pending judicial
inquiry; while the rule in the present section relates to res judicata that is,
a matter adjudicated upon or a matter on which the judgment has been
pronounced. Section 10 bars the trial of a suit in which the matter directly
and substantially in issue is pending adjudication in a previous suit. The
present section bars the trial of a suit or an issue in which the matter
directly and substantially in issue has already been adjudicated upon in a
previous suit. Moreover, public policy requires that there should be an end
of litigation. The question whether the decision is correct or erroneous has
no bearing on the question whether it operates or does not operate as res
judicata;23 otherwise, every decision would be impugned as erroneous and
there would be no finality.24 While s 10 relates to res sub judice, that is, a
matter which is pending a judicial adjudication, s 11 relates to res
judicata, that is to say, a matter already adjudicated upon by a competent
court. Whereas s 10 bars the trial of a suit in which the matter directly and
substantially in issue is pending adjudication in a previous suit, section 11
bars the trial of a suit or an issue in which the matter directly and
substantially in issue has already been adjudicated upon in a former suit.
The object of both the sections is similar, namely, to protect the parties
from being vexed twice, for the trial of the same cause and to achieve the
public policy that there should be an end of litigation. Therefore, one of
the objects of s 10 is to prevent competent courts of
concurrent jurisdiction from having to try parallel suits in respect of the
same matter in issue, and thereby to pave the way for the application of
23 Tarini Charan v Kedar Nath AIR 1928 Cal 777, (1928) 33 Cal WN 126
(FB); Mohanlal v Benoy Krishna AIR 1953 SC 65, [1953] SCR 377; MSM
Sarma v Sri Krishna Sinha AIR 1960 SC 1186, [1961] SCR 96
24 Behari v Majid (1901) ILR 24 All 138; Phundo v Jangi Nath (1893) ILR 15
All 327
12
the rule of res judicata contained in the next following section. So, what
the court has really to see is if the decision of the matter directly and
substantially in issue in the former suit will or will not lead to the decision
of the matter directly and substantially in issue in the subsequent suit,
and if it is satisfied that it will, then it must stay the trial of the subsequent
suit and await the decision in the former suit.25
25 Fulchand Motilal v Manhar Lal AIR 1973 Pat 196; See also Radhika Konel
Parekh v Konel Parekh AIR 1993 Mad 90