RES SUB JUDICE: STAY OF SUIT [ SECTION 10]. How to draft the application for stay of suit under section 10 of CPC 1908.

 

RES SUB JUDICE: STAY OF SUIT [ SECTION 10]

“ 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, 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 limit 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.”

What is the object of Section 10?

      It avoids two parallel litigations that are similar in respect of cause of action, subject-matter and relief in two Courts;

      It protects a person from multiplicity of proceedings;

      It avoids conflict of decisions.

Scope of Section 10

      Section 10 of the Code contains the rule of res sub judice and is applicable to the trail of a suit and not the institution thereof. It also does not preclude a Court from passing interim orders, such as grant of injunction or stay, appointment of receiver etc.

Conditions for the application of Section 10

      There must be two suits, one previously instituted and the other subsequently instituted;

      The matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit.

      The previously instituted suit must be pending in the same Court in which the subsequent suit is brought or in any other Court in India or in any Court beyond the limits of India established or continued by the Central Government or before the Supreme Court.

      The Court in which the previous suit is instituted must have jurisdiction to grant the relief claimed in the subsequent suit.

      Such parties must be litigating under the same title in both the suits.

            As soon as the above conditions are satisfied, then the Court cannot proceed with the subsequently instituted suit since the provisions contained in Section 10 are mandatory and no discretion is left with the Court. The order staying the proceedings in the subsequent suit can be made at any stage.

When Section 10 does not apply?

      When the conditions mentioned in Section 10 are not satisfied.

      Since the provisions apply only to the suits instituted in a Civil Court, therefore it has no application to any other proceedings of a different nature.

      When either previously instituted or the subsequently instituted suit is not legally maintainable since this provision applies only to those suits which are legally maintainable.

Test for the application of Section 10

      The test for the applicability of Section 10 is whether the decision in a previously instituted suit would operate as res judicata in the subsequent suit, if it is so, then the subsequent suit must be stayed.

Inherent Power to Stay

Even where the provisions of Section 10 of the Code do not strictly apply even then the Civil Court has inherent power under section 151 to stay a suit to achieve the ends of justice.

Consolidation of Suits

      Since the main purpose of Section 10 is to avoid two conflicting decisions, a Court in an appropriate case can pass an order of consolidation of both the suits.

Contravention:- Effect

      A decree passed in contravention of Section 10 is not a nullity and therefore cannot be disregarded in execution proceedings. Section 10 lays down a rule of procedure, pure and simple, which can be waived by a party. Hence, if the parties waive their right and expressly ask the Court to proceed with the subsequent suit, then they cannot afterwards challenge the validity of the subsequent proceedings.


 IN THE COURT OF CIVIL JUDGE SR. DIV. KAPURTHALA

    

 ABC                                                 Vs.                                                 XYZ

….Plaintiff/Respondent                                            …..Defendant/Applicant

 

 Subject:- Application for stay of proceedings under section 10 of  the Code of Civil Procedure, 1908.

 

Respected Sir,

 

Most respectfully stated as under:-

1.     That the above noted Civil Suit for permanent injunction has been filed by the plaintiff seeking relief of injunction against alienation of suit property by the defendant/applicant.

2.   That the plaintiff has also filed another Civil Suit no………..for possession of the suit property against the applicant/defendant which is pending in the Court of …… and is fixed for……….

3.   That in the present case as well as in the above noted Civil Suit no____ parties are same, cause of action, the suit property as well as relief claimed is same. The relief for permanent injunction of alienation apparently is available to the plaintiff in the above noted previous suit also.

4.     That filing of the present suit is barred by the principle of res sub judice under section 10 of CPC.

5.     That filing of the present suit is nothing but an abuse of process of the law and is liable to be stayed.

Prayer:-

IN VIEW OF SUBMISSIONS MADE ABOVE, IT IS HEREBY MOST RESPECTFULLY PRAYED:

a.      That the proceedings in the above noted case may kindly be stayed till the decision of the Civil Suit no._____ pending in the Court of ____ and in the facts and circumstances of the case.

b.     To pass any other further order which this Hon’ble Court may deem fit and proper in the interest of justice and equity.

 

Place_______                                                                Applicant/Defendant

 

                                   Through Counsel

                            

                               Ashish Kumar, Advocate

Verification:-

Verified that the contents of my application are true and correct and has not been falsely stated therein.

Verified at Kapurthala

Verified on _________                                                 Applicant/Defendant 



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