This article is written by Priya Singh, a student of Government Law College, Mumbai. This article has been edited by Ojuswi (Associate Lawsikho).
This article has been published by Sneha Mahawar.
Table of Contents
Introduction
Section 10 of the Civil Procedure Code, 1908, (C.P.C.) is based on the principle of res sub judice which means “under judgment”. This section specifies that no other court can proceed with the trial of any suit in which the issue concerned is directly and substantially in question in any previously instituted suit between the same parties or parties that are litigating on behalf of them; provided other conditions mentioned in the section are also satisfied; to mention – the parties must be litigating under the same title and such a suit should be pending in the same court or any other court in India. Such a court should be competent to take up the suit and grant the relief claimed whether in India or a court beyond the limits of India but established or which is continued by the Central Government having like jurisdiction, or before the Supreme Court.
The object of the prohibition contained in Section 10 is to prevent a plaintiff from instituting two parallel suits so as to deter different judgments on the same matter in issue. However, Section 10 does not prevent the court from dealing with the subsequent suit for any other purpose. The object is merely to avoid a multiplicity of suits and to reduce the burden on the courts. The question to be answered in this article is whether the court can suo moto stay a suit under Section 10 of the C.P.C. even if the parties to the suit have not filed an application to that effect?
Under which conditions Section 10 can be attracted
The following conditions must be satisfied for the application of Section 10:
- There must be two suits, one that is already instituted and the other subsequently instituted.
- The subject matter in issue in the subsequent suit must be directly and substantially the same as the issue in the previous suit.
- The two suits must be filed on behalf of the same parties or their representatives.
- The earlier instituted suit must be pending in the same court in which the subsequent suit is brought or in any other court in India or any court outside 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 be competent and have the jurisdiction to grant the relief sought in the subsequent suit.
- The parties must be litigating under the same title in both the suits.
As laid down in Manohar Lal Chopra v. Seth Hiralal; if the above conditions are satisfied, a 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 to stay the proceedings in the consequent suit can be made at any stage.
Another fundamental test for applicability of Section 10 is whether, on the final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. This was laid down in the National Institute of Mental v. C. Parameshwara.
Section 10 does not, however, limit the court’s power to consider the merits of the case. It is up to the court, if satisfied, to consider if a subsequent suit may be decided purely on legal grounds.
Do courts have the power to suo-moto stay a suit under Section 10
In the case of Smt. Pooja Soni V. Dinesh Kumar 2019, the Madhya Pradesh High Court laid down a precedent answering, whether to exercise power under Section 10 of the C.P.C., an application is required to be filed or not? A petition was filed by the petitioner challenging an order passed by the Court of First Civil Judge Class I, Nasrullagang, where the application filed under Section 10 of C.P.C. was rejected by the Trial Court. The petitioner contended that she was the owner of a property which she purchased out of her stridhan. As a mark of respect, the petitioner mutated her husband’s name in the revenue record.
Petitioner’s husband later borrowed Rs.2 Lakh from the respondent by which the respondent kept the Rin Pustika in respect of the property with him which was to be returned once the money was paid. Even after returning the money, the respondent did not hand over the Rin Pustaka.
The petitioner further contended that under the garb of loan transaction the respondent got a sale deed executed by the petitioner’s husband in favour of the respondent.
In a suit instituted by the petitioner against the respondent, the petitioner prayed for a decree of declaration of the sale deed null and void and permanent injunction. The respondent had also filed a suit for a permanent injunction on the strength of the sale deed that was executed in his favour by the petitioner’s husband. The respondent had filed the suit on 31st July 2017, while the petitioner had filed the suit on 2nd August 2017 i.e. just after two days.
The petitioner then applied under Section 10 of the C.P.C. praying that the suit filed by the respondent be stayed. The Trial Court vide its order disposed of the application of the petitioner and further directed the stay of the petitioner’s suit.
After the rejection of the petitioner’s application under Section 10 of C.P.C., the petitioner further filed another application under Section 151 of C.P.C. praying for the consolidating hearing of both the suits. The learned Trial Court at this point rejected the said application on the ground that the proceedings of the petitioner’s suit had already been stayed in the earlier order.
The issue raised by the petitioner
Among the other issues, one of the issues raised by the petitioner was whether the Trial Court erred in staying the petitioner’s suit, without an application being filed for the same? The petitioner had in fact filed an application for the stay of the respondent’s suit.
Observations made by the High Court
On perusal of the plaints submitted by both the parties, the Hon’ble High Court concluded that the issues in both the suits were distinct, despite the fact that the parties and property in both suits were similar. It was pointed out that the respondent sought a permanent injunction in his suit, but the petitioner was seeking a declaration and permanent injunction in her subsequent suit. As a result, the reliefs sought in both suits were distinct.
Responding to the petitioner’s contention that the learned Trial Court failed to consider that under Section 10 of the C.P.C., an application for stay of the suit must be filed in the same suit, and in the immediate case, the application was filed in another suit. While the Trial Court directed for the stay of the petitioner’s suit, the Hon’ble High Court upheld the stay by referring to the case of Munnilal Vs. Sarvajeet, which held the Court under Section 10 of the C.P.C. can suo moto stay in a second suit.
However, the Court also held that in the present case, the property and most of the parties were the same and the topic in issue was also the same to some extent. Therefore, consolidation of both suits would be in the interests of justice to avoid duplication of processes and undue delay and protraction of litigation.
Judgment
From the observations of the Court made above, it is evident that an application is not required to exercise power under Section 10 of the C.P.C. and the Trial court did not err in this aspect.
Inherent power to stay a suit under Section 151 of C.P.C.
A civil court also has inherent power under Section 151 of C.P.C. to stay a suit even where the provisions of Section 10 of the Code do not strictly apply to achieve ends of justice. However, it was held in Manohar Lal Chopra v. Seth Hiralal; that a court in which a subsequent suit has been filed is prohibited from proceeding with the trial of that suit in certain specified circumstances. It was laid down that when there is a special provision under Section 10 in the Code of Civil Procedure for dealing with the contingencies of two such suits being instituted, the recourse of inherent powers under Section 151 cannot be justified.
Under which conditions is the court left with no discretion
Where the conditions under Section 10 of C.P.C. are fulfilled, the court does not have any discretion but to stay the suit. It was established in Manohar Lal Chopra v. Seth Hiralal; that a court cannot invest itself with jurisdiction not conferred on it by law in issuing a stay in the execution of its inherent powers. The provisions of Section 10 do not become inapplicable if the court determines that the previously instituted suit is vexatious or was brought in breach of the contract terms. Citing the observations made in Ram Bahadur v. Devidayal Ltd., the court held that it was not reasonable to say that the Legislature did not intend for the provisions of Section 10 to apply when the previously instituted suit was found to be instituted under vexatious motive. It was further observed that the provisions of Section 35A show that the Legislature was aware of false or vexatious claims or defences in suits and provided for compensatory costs as a result. In such instances, the Legislature could have allowed for the non-applicability of provisions of Section 10 but they did not do so.
Conclusion
Taking into consideration the observations of the Madhya Pradesh High Court in Smt. Pooja Soni V. Dinesh Kumar 2019; it can be said that the courts do have a suo moto power to stay a suit under Section 10 of the C.P.C. even when an application to that effect has not been filed. The conditions as laid down above should have been met for the applicability of the section. However, the court is not left with any discretion in certain circumstances where the actualities show that all the requirements of Section 10 are fulfilled, the court has to mandatorily stay the suit and in the execution of its inherent powers, the court cannot invest in itself with jurisdiction that it is not conferred with by the law.
References
- Manohar Lal Chopra v. Seth Hiralal, AIR 1962 SC 527; 1962 Supp (1) SCR 450
- National Institute of Mental v. C. Parameshwara AIR 2005 SC 242
- Munnilal v. Sarvajeet AIR 1994 Rajasthan 22
- Smt. Pooja Soni v. Dinesh Kumar 2019
- Civil Procedure Code with Limitation Act 1963 by C.K. Takwani
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