Introduction

Section 10 of the Code pf Civil Procedure deals with the rule of res-subjudice. “Subjudice” is a Latin term meaning “under judgement”. It denotes that a matter or case is being considered by a judge. When two or more cases are filed by the same parties for the same subject matter, the competent court has the power to stay proceedings.

Section 10 of CPC

Section 10 of the Code gives for Stay of Suit and it reads as follows:

No Court shall proceed with the trial 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 have 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.

Nature and Scope

Section 10 declares that no court shall proceed with trial of any suit in which matter in issue is directly and substantially in issue in a previously instituted suit between the same parties and the court before which the previously instituted suit is pending is competent to grant the relief sought.

Object

The object behind this section is to prevent courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter, and same relief. This section intents to protect a person from multiplicity of proceedings and to avoid a conflict of decision. Further, it aims to avert inconvenience to the parties and gives affect to the rule of res-judicata. It thereby saves time and energy of the court as well as parties.

It is important to note that this section does not bar institution of suit, but only bars the trial, hence a subsequent suit is stayed and dismissed.

Conditions

In the case of Manoharlal Chopra v. Seth Hiralal (1962) the following conditions were put forth:

There must be two suits, a previously instituted and a subsequently instituted one.
Matter in issue in subsequent suit must be directly or substantially in issue in previous suit.
The parties of both the suits must be same.
The previously instituted suit must be pending in the same court in which subsequent suit is brought or in any other court in India or in any court beyond the limits if India established or continued by Central Government or before Supreme Court.
The court in which previously instituted suit is brought about 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.

Test

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

Mandatory Nature

The provisions of section 10 are definite and mandatory. If all the conditions are satisfied then there is no discretion left on the part of court and the provisions become mandatory. The court should even suo moto stay the second suit if it is satisfied that this section is applicable.

Suit pending in foreign court

Explanation to section 10 states that there is no bat on the power of an Indian Court to try a subsequently instituted suit if the previously instituted suit is pending before a foreign court.

Interim orders

An order of stay of suit does not take away the power of the court to pass an interim order. Even if the suit is stayed, it is open to the court to make interim orders.

Waiver

In Guru Prasad Mohanty v. Bijoy Kumar Das (1984) it was laid down that if the parties give consent or do not raise objection and waive their right, the court may decide the subsequent suit. No objection thereafter can be raised by the aggrieved party.