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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