Section 10 CPC

 INTRODUCTION

Section 10 of the Code of Civil Procedure, 1908 lays down the structure of the Doctrine of Res Subjudice. Similarly, Section 11 of the Code of Civil Procedure, 1908 deals with the Doctrine of Res Judicata. Res Sub Judice lays the rules with regard to the Stay of Suits when the same matter under the same title is under consultation or pending for adjudication in a Court. On the other side, Sec 11 of CPC provides the rulings and essential conditions pertaining to the Bar on Suits when the same matter under the same title has already been adjudicated by a competent Court. It bars the trail of suit or any matter which is directly and substantially in compliance with the former suit which has already been adjudicated. These two provisions are to be mandatorily implied by every Court and not to entertain suits of the same matter being filed endlessly. The purpose of Stay of Suits is to restrict or avoid multiplicity of proceedings, end with a conclusive adjudication and to avoid two different orders by two courts or the same court for one issue

The main purpose or the nexus behind this Section is that to bring an end to the litigation, to avoid harassment over the defendant, to avoid wasting the resources of the court and to delay the Court procedures. In the case of Guru Prasad v. Bijay Kumar1, it was held that the main aim of this Section is to eliminate the outcome of two contradictory verdicts for the same issue.

This concept can also be related to the provisions of Double Jeopardy under Article 22 (2) of the Indian Constitution.

OBJECTIVE:

Hon’ble Supreme Court stated the object of section 10 Code of Civil Procedure,1908 in the landmark case of INDIAN BANK v. MAHARASHTRA STATE CORPORATION MARKETING FEDERATION LIMITED2 as follows:

1. To avoid two parallel litigation which are similar in cause of action, subject matter and relief.

2. To protect a person from multiplicity of proceedings.

3. To prevent court of concurrent jurisdiction to simultaneously adjudicate two matters of same cause of action, subject matter and relief.

4. To avoid conflict of decisions of two separate courts on same matter.

Though the heading of section 10 is STAY OF SUIT, there is no bar on institution of suit in subsequent suit. The rule of sub judice applies to trial of suit and not its institution.

There is no bar on subsequent suit where already there is same matter subsisting with other court, there is no bar in passing interim orders in the favour of justice. Only the trial is barred.

EXAMPLE: Orders like appointment of receiver, Attachment of property, Injunction, etc.

Section 10 STAY ON SUIT :- No Court shall proceed with the trail 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, 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 India from trying a suit founded on the same cause of action.

MATTERS DIRECTLY AND SUBSTANTIALLY IN ISSUE:

This statement of the essentials simply means that the subject matter in both the suits must be one and the same. For instance: A files a suit against B for misrepresentation while entering a contract. He also files a suit against B for Breach of Contract. The matter in issue is not one and the same; hence this Sec10 of the Code of Civil Procedure, 1908 will not be attracted.

Res-Subjudice will only apply when the matters are identical and it the matters are only similar to each other the res-subjudice will not apply. However, In the case of Case :- Sneh Lata vs Brij raj3

It was held that Identical matters donot mean that matters are exact mirror image it only means that the matters are substantively same.

Illustration.

1) ‘X’ and ‘Y’ decide to enter into a contract for the sale of machine. ‘X’ is the seller and ‘Y’ is the purchaser. Y defaulted in paying the amount of the sale to X. X first filed a suit for recovery of the entire amount in Delhi. Subsequent to this, X filed another suit at Bombay High Court demanding Rs. 20,000 as outstanding balance. In X’s suit Y took the defence that X’s suit should be stayed since both the suits are on similar issue. However court of Bombay held that since X’s first suit and the second suit have similar issues similar to the first suit, the subsequent suit is liable to be stayed.

SUIT PENDING IN FOREIGN COURT:

The explanation clause of Section 10 clearly provides that there is no limitation on the power of an Indian court to try a subsequent instituted suit if the previously instituted suit is pending in a foreign suit. This also means that the cases can be carried on simultaneously in two courts.

Conditions for Res-Subjudice

The essential elements to attract this Sec 10 of CPC are as follows:

• There must be two suits instituted. The former is known as Previously Instituted and the latter is known as Subsequently Instituted suit.

• The matter in issue must be directly and substantially in issue in both the suits.

• Both the suits must be between the same parties or any person acting under the parties

• Previously Instituted suit must be pending in the same or any other Court in India having its competent jurisdiction.

• The Court dealing with the previously instituted suit must be competent in its pecuniary and territorial jurisdiction to grant the relief asked for in the subsequently instituted suit.

• The parties litigating in the suits must do so under the same title in both the suits

In Neeta vs. Shiv Dayal Kapoor & Others4 it was held the subsequent matter can not be stayed if the conditions mentioned in Section 10 are not fulfilled. In the apparent case, the two courts which tried the same issues were not the courts having concurrent jurisdiction. Therefore, the proceedings in the subsequent court were not stayed.

Doctrine of res-subjudice and res-judicata both are based on Natural Justice Principles.

This Doctrine of Res Subjudice can be associated to the basic principles of natural justice. Any action or procedures that are against such principles of natural justice will in turn become violation of legal rights of a person thereby affecting the Human Rights of the person. Just like how Res Judicata has its own importance and the same being incorporated in the Indian Constitution under the concept of Double Jeopardy, Res Subjudice must also be included into the Constitution as the basic legal right as well as Fundamental Right. This Section 10 of the Code and the Doctrine of Res Subjudice shall be related to the Right of Life enshrined to the Indian citizens by the Indian Constitution under Article 21, as it protects and prevents the harassment of the defendant party or parties, which reflects the ideas of the Article 21 in relation to Right against harassment inclusive of Mental harassment. It also prevents the misuse of Legal Rights and the misuse of powers of the Courts.5 1. Nemo debet lis vexari pro eadem causa– no man to be vexed twice for the same cause. 2. Interest republicae ut sit finis litium– it is in the interest of the state that there should be end to litigation. 3. Re judicata pro veritate occipitur– a judicial decision should be accepted as correct. In the case of Ashok Kumar v National Insurance Company6 Supreme Court observed that the first legal maxim takes care of the private interest and the next two of the larger interest of the society.

Stay on a Suit Other than Section 10

1. Inherent Powers to stay Under Section 151 Cpc where there is

A. Abuse of Process

B. Cross Suits

The word inherent has very wide meaning which includes an inseparable part of something or an attribute or quality which is permanent and essential. It is something which is intrinsic and attached to a person or object. Therefore, inherent powers are the powers of the courts which are inalienable i.e., something which can be separated or taken away from the courts and they exercise it in order to provide complete justice to the parties.

This was well explained in the case of Ram v. Devidayal7. This Inherent Power of the Court can also be termed as an exception to this Section 10 of the Code as well as an individual right of the Courts.

Additionally, courts can also consolidate different suits between the same parties in which the matter of issue is substantially the same. In Bokaro and Ramgur Ltd. vs. State of Bihar and Another8the matter in issue was regarding the ownership of a property. The court in this

case used its power and consolidated different issues having same matter.

Test For Consolidation of Suits. Case :- Ram Ji Gupta vs Gopi Krishan Aggarwal9

• There must be common question of fact and law.

• It must not be a misjoinder of parties.

• Non Consolidation may result in conflicting decisions.

• Non Consolidation would lead to prejudice to the parties.

2. HC inherent power to stay on a suit pending before any subordinate court.

3. Order 30 Rule 2 ( Suit on a firm.)

4. Order 32 Rule 10 ( Plaintiff is Minor)

5. Order 35 Rule 3 ( Interpleader suit.)

Exceptions to Res- Subjudice

This Section shall only be used to stay or restrict the Trial of a suit as it is very explicit in its content and starts with the words, No Court shall proceed with the trial of any suit. Thus, it is conclusively determined that it shall only apply to the trial and not its other relevant proceedings. This Section 10 of the Code of Civil Procedure, 1908 cannot be invoked if the matters of the issues are distinct and not directly same but different.

The Exceptions were pointed out in the landmark case of:-

INDIAN BANK v. MAHARASHTRA STATE CORPORATION MARKETING FEDERATION LIMITED10

1. Suits in Foreign Courts.

As stated above the explanation clause of Section 10 clearly provides that there is no limitation on the power of an Indian court to try a subsequent instituted suit if the previously instituted suit is pending in a foreign suit. This also means that the cases can be carried on simultaneously in two courts.

2. Summary Suits (Order 37) These suits cannot be called as trials because not much procedure is followed and judgment can be passed straightaway in the favor of plaintiff. Case :- Indian Bank v. Maharashtra State Co-operative Marketing Federation Ltd.11

The word ‘trial’ in S.10 in the background of a summary suit means all proceedings straight from filing of the plaint till the final judgment and decree and should be interpreted keeping in mind the object and nature of that provision.

Normally, in a summary suit the ‘trial’ really begins after the court or the judge grants leave to the defendant to contest the suit. It cannot be interpreted to mean the entire proceedings starting with the institution of the suit by lodging a plaint. Therefore, the court dealing under Order 37 can proceed up to the stage of hearing the summons for judgment and passing the judgment in favour of the plaintiff only when:-

firstly, the defendant has not applied for leave to defend or if such application has been made and refusedor

secondly, the defendant who is permitted to defend fails to comply with the conditions on which the leave is granted.

Thus the Court held that bar u/s 10 CPC donot apply to any subsequent matters tried summarily under Order 37 of CPC

3. Interim Orders

Some orders are passed without any proceedings of a trail, thus such orders cannot be taken up for stay based on this Doctrine. This shows that the section 10 and the Doctrine of Res Subjudice can be invoked only for bar of trails and cannot be invoked in the other interim orders passed by the Court of Law. This was well established in the case of Senna ji Kapurchand v. Pannaji Devachand12

DIFFERENCE BETWEEN RES JUDICATA (Section 11) & RES SUBJUDICE(Section 10).

Res Judicata was derived from the Latin term and it means ‘the thing has been judged’. This clearly explains to us, the suit must not be entertained if the matter and issue raised in the subsequent suit is directly same with that of the former suit having the same parties litigating under the same title. This concept can also be related to the provisions of Double Jeopardy under Article 22 (2) of the Indian Constitution13. This being the primary explanation, the difference between Res Subjudice and Res Judicata are as follows:

1. Meaning :- There must be two suits, one previously instituted and one subsequently instituted to attract Res Subjudice.Whereas, there should be an already litigated and decided suit known as the former suit to attract Res judicata.

2. Previous Suit :-The previously instituted suit must be pending in a court for adjudication when the subsequent suit is filed to invoke Res Subjudice.While, the former suit between the same parties must have been already adjudicated and disposed of when the latter is filed to invoke Res Judicata.

3. Say of Parties:-The parties can have a say when the subsequent suit is stayed explaining why it was instituted and can withdraw the same through amicable settlement in Res Subjudice. But, in Res Judicata, the intrest of the parties are irrelevant as it has universal application.

4. Bar:- Res Subjudice bars the trial of the suit only but not the institution of plaint. Whereas, Res Judicata directly bars the suit at all stages and proceedings.

13Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate