CODE OF CIVIL PROCEDURE, 1908

Section 10 - Stay of suit

ANNOTATION

Reference/ Relevance within Statute

Order 41 Rule 5 (stay of proceedings and execution)

Case Cited

1. The Maharashtra State Co-operative Marketing Federation Limited v. Indian Bank MANU/MH/0431/1996: 1997(1)BomCR524.

2. National Institute of Mental Health and Neuro Sciences v. C. Parameshwara MANU/SC/1063/2004 AIR 2005 SC 242; Austin Nichols and Co.
and Seagram India Pvt. Ltd. v. Arvind Behl, Director, Jagatjit Industries Ltd. MANU/SC/2857/2005 : 2006 (32) PTC 133 (Del).

3. Ashish C. Sinha v. Hindustan Gas & Industries Ltd., MANU/WB/0037/1985: AIR 1985 Cal 154.

4. M.V.Rajashekhar v. M.V.Rajamma MANU/KA/0125/2004: AIR 2004Kant280.

5. R.Srinivasan v. Southern Petrochemicals Industries Corporation Limited MANU/TN/0073/1992 : AIR 1992 Mad 363; British India

Corporation Limited v. Rashtraco Freight Carriers MANU/SC/1180/1996.

6. Bijendra Kumar v. Basant Kumar MANU/UP/0011/1994: AIR1994All81.

7. C.L.Tandon v. Prem Pal Singh AIR1978Delhi221; Channabasappa Kamadal v. Kishan Chand MANU/KA/0061/1972: AIR 1972Kant112.

8. Devanayagi Ammal v. Manicka Konar and Ramu Konar MANU/TN/2032/2006.

9. Pukhraj D.Jain v. G.Gopalakrishnan MANU/SC/0364/2004: AIR 2004 SC 3504.

10. Inderpal Singh Hassanwalia v. Bir Tibetan Woollen Mills, MANU/DE/0090/1973: AIR 1974 Delhi 95.

11. R. Subramanian v. Arulmighu Dhandayuthapani Swamy Thirukkoil Palani 2007(5) C.T.C. 781, Velu Achari v. The Special Commissioner-
cum-Commissioner MANU/TN/1170/2008.

12. S.S.Dhandapani v. The Branch Manager, Indian overseas Bank MANU/TN/1204/2002: AIR 2002Mad442.

13. Indian Express Newspaper (Bombay) Limited v. Basumati Private Limited MANU/MH/0039/1969: AIR 1969Bom40.

14. Ramlal Maniram Navdhinge v. Maniram Patiram Navdhinge 2008 (1) Mh Lj 860.

15. M/s O.P.Steel Traders v. M/s Steel Strips Limited MANU/PH/0060/1992: AIR1992P&H217; Bijendra Kumar v. Basant Kumar
MANU/UP/0011/1994: AIR1994All81.

16. Raja Ram Estate v. Niharmoni Law 2006 (3) CHN 465, Prism Entertainment Pvt. Ltd. v. Prasad Productions Pvt. Ltd.

MANU/WB/0527/2006.

17. Usha Rani v. Inder Mal and Sons MANU/RH/0049/1988: AIR 1988 RAJ 223.

18. Kshetrapal Singh v. State of U.P., 1975 All WC 618; Ram Charan v. State of U.P. MANU/UP/0035/1979: AIR1979All 114.

19. Shanit Swaroop Sharma v. Abdul Rehman Farooqui MANU/MP/0018/1965: AIR1965MP55.

20. Manoharlal v. Heeralal, MANU/SC/0056/1961: AIR 1962 SC 527.

21. Munilal v. Sarvajeet MANU/RH/0004/1984: AIR 1984 RAJ 22.

22. Manohar Lal Chopra v. Raj Bahadur Rao Raja Seth Hiralal MANU/SC/0056/1961: AIR 1962 SC 527; Dr. N.P. Tripathi v. Dayamanti Devi
MANU/BH/0011/1988: AIR 1988 Pat 123

23. N. Dutta v. Jardin Victor Limited MANU/BH/0003/1984: AIR1984Pat7.

24. Bihar Solvent Extraction Co v. Bihar State Forest Development Corporation Limited MANU/BH/0026/1998: AIR 1998Pat111.

25. Gauri Bala Dutta v. IIIrd Addl Civil Judge, Varanasi MANU/UP/0043/1991: AIR1991All216.

26. Manoharlal Chopra v. Raj Bahadur Rao Raja Seth Hiralal MANU/SC/0056/1961: AIR 1962 SC 527.

27. Smt. Tara Devi v. Smt. Kamala Gupta MANU/BH/0025/1999: AIR1999Pat103.

28. Minocher Behramji Damanial v. Hema N. Dadachanji MANU/MH/0205/1982: AIR1982Bom151; Aminchand Pyaralal v. Union of India,

MANU/MH/0267/1976: (1977) 79 Bom LR 1.

29. Jugometal Trg Republike v. Rungta and Sons Private Limited MANU/WB/0079/1966: AIR 1966Cal382.

30. Dr. Guru Prasad Mohanty v. Bijoy Kumar Dass MANU/OR/0063/1984: AIR 1984Ori209.

31. Mohd Yusuf v. Ahmad Miya MANU/UP/0202/1987: AIR1987All335.

32. Chitivalasa Jute Mills v. Jayee Rewa Cement MANU/SC/0092/2004: AIR 2004 SC 1687.

33. Chitivalasa Jute Mills v. Jayee Rewa Cement MANU/SC/0092/2004: AIR 2004 SC 1687.

34. Sagar Shamsher Jang Bahadur v. Union of India MANU/DE/0073/1978: AIR1979Delhi118; Brijlal and Co v. MPEB MANU/WB/0012/1975:
AIR1975Cal69.

35. A.C. Naha Roy v. National Coal Development Corporation Ltd. MANU/MP/0007/1973: AIR1973MP14.

36. Mohd Yusuf v. Ahmad Miya MANU/UP/0202/1987: AIR1987All335.

37. N. M. Tripathi v. Dayawanti, MANU/BH/0011/1988: AIR 1988 Pat 123.

38. Ram Charan v. State of U. P., MANU/UP/0035/1979: AIR 1979 All 114.

39. M/s. Mehta Gandhi Associates v. Shree Pipes, MANU/DE/0226/1989: AIR 1990Delhi139.

40. Arch Diocese of Madras-Mylapore Society v. Jayarose Ammal MANU/TN/1423/2008.

41. R.Srinivasan v. Southern Petrochemicals Industries Corporation Limited MANU/TN/0073/1992 : AIR 1992 Mad 363.

42. Ram Narain v. Ram Swarup MANU/UP/0031/1962: AIR1962All108.

43. Naha Ray v. N. C. D. C., MANU/MP/0007/1973: AIR 1973 MP 14.

44. Challapathi v. Swadeshi Sugar, MANU/WB/0040/1983: AIR 1983 Cal 199.

45. Raunaq International Limited v. Ota Kandla Private Limited MANU/GJ/0046/1987: AIR 1987GUJ 213.

46. Durga Dass v. Gita Devi MANU/HP/0022/1977: AIR1977HP65.

47. Vijay Kumar v. Manohar Lal MANU/HP/0022/1977: AIR1979Delhi1.

48. Minocher Behramji Damanial v. Hema N. Dadachanji MANU/MH/0205/1982: AIR 1982Bom151.

49. Minocher v. Hema, MANU/MH/0205/1982: AIR 1982Bom151; Mirta Lina v. Finlay Mills, AIR 1982 Cal 41 at 47.

50. Meera Shankar Lal v. Shankar Lal, (1989) I Hindu LR 81 (Bom): (1988) 2 DMC 497 at 498.
51. Arumugha Udayar rep. by Power Agent Periyasami v. Lakshmi MANU/TN/0717/2005.

52. Ambika Sahu v. Sumitra Sahu, MANU/OR/0027/1990: AIR 1990 Ori 127 at 128.

53. R. Subramanian v. Arulmighu Dhandayuthapani Swamy Thirukkoil Palani 2007(5) C.T.C. 781, Velu Achari v. The Special Commissioner-
cum-Commissioner MANU/TN/1170/2008

54. Mayar (H.K.) Ltd. v. Owners and Parties, Vessel M.V. Fortune Express AIR 2006 SC 1828.

55. Hari Ram v. Lichmaniya MANU/OR/0027/1990: AIR2003Raj319.

56. A.C. Naha Roy v. National Coal Development Corporation Limited MANU/MP/0007/1973: AIR1973MP14.

57. Sujanbai Haribhau Kakde v. Motiram Gopal Saraf MANU/MH/0188/1980: AIR1980Bom188.

58. Indian Bank v. Maharashtra State Co-operative Marketing Federation Ltd., MANU/SC/0350/1998: AIR 1998 SC 1952.

59. Lakhshmi Devi v. Rajender Prasad Sao MANU/BH/0035/1990: AIR1990Pat210.

60. Smt. Sneh Lata Mathur v. Shri Brij Raj Bahadur MANU/DE/1740/2002: AIR2003Delhi259; Baburao Vithalrao Sulunke v. Kadarappa
Prasappa Dabbannavar AIR 1974 Mys 63; V.R. Balakrishnan Nadar v. R. Velayudhan Nadar MANU/KE/0030/1980.

61. Lakshmi Devi v. Rajendra Prasad, MANU/BH/0035/1990: AIR 1990Pat210.

62. Ambika Sahu v. Sumitra Sahu MANU/OR/0027/1990: AIR1990Ori127.

63. Durgaprasad v. Kantichandra Mukherji, MANU/WB/0155/1934: AIR 1935 Cal 1.

64. Adigarla Simhachala v. Adigarla Papamma MANU/AP/0057/1973: AIR1973AP31.

65. The Maharashtra State Co-operative Marketing Federation Limited v. Indian Bank 1997(1)BomCR524; Harish Chandra v. Triloki Singh,
reported in MANU/SC/0057/1956

66. Indian Bank v. Maharashtra State Co-operative Fedn. Ltd., MANU/SC/0350/1998: AIR 1998 SC 1952 (1954).

SYNOPSIS

1. Object 84

2. Scope 84

3. Provision mandatory 87

4. Stay of suit under inherent powers of the Court 87

(a) Consolidation of the suits 88

(b) Transfer of suit 88

(c) Matter in issue 89

(d) Directly and substantially in issue 89

(e) Explanation 90

(f) Court having jurisdiction 90

(g) Previously instituted suit must be pending 91

(h) Trial 92

(i) Trial in a summary suit 93

1. Object.
The object of Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying
two parallel suits between the same parties in respect of the same matter in issue. Though the
heading of this section is "stay of suit", it does not operate as a bar to the institution of the
subsequent suit. It is only the trial of the suit that is not to be proceeded with (The Maharashtra
State Co-operative Marketing Federation Limited v. Indian Bank).1 Another object of the section is to
avoid the conflicting decisions of two competent Courts over the same matter and also to save the
time of the Court where subsequent suit is instituted in the same matter. In another words the object
underlying Section 10 is to avoid two parallel trials on the same issue by two Courts and to avoid
recording of conflicting findings on issues which are directly and substantially in issue in previously
instituted suit (National Institute of Mental Health and Neuro Sciences v. C. Parameshwara; Austin
Nichols and Co. and Seagram India Pvt. Ltd. v. Arvind Behl, Director, Jagatjit Industries Ltd.).2 For
the applicability of the section, it is not sufficient if only one of the several issues is identical. There
must be identity of entire matter (Ashish C. Sinha v. Hindustan Gas & Industries Ltd.).3 If there are
two suits between the parties, it is subsequent suit which has to be stayed and not the previous one
(M.V.Rajashekhar v. M.V.Rajamma).4

2. Scope.

Under Section 10 of the Code of Civil Procedure, 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 having jurisdiction
to grant the relief claimed. This section does not contemplate an identity of issues between the two
suits, nor does it require that the matter in issue in the two suits should be entirely the same or
identical. What the section requires is that the matter in issue in the two suits should be directly and
substantially the same, and proper effect must be given to the language used by the legislature in
Section 10 that the identity required is a substantial identity. There must be an identity of the
subject-matter, the field of controversy between the parties in the two suits must also be the same,
but the identity contemplated and the field of controversy contemplated should not be identical and
the same in every particular, but the identity and the field of controversy must be substantially the
same. Where there are different and independent transactions between the parties, a suit qua one
transaction cannot be stayed when a suit qua second transaction is filed (R.Srinivasan v. Southern
Petrochemicals Industries Corporation Limited; British India Corporation Limited v. Rashtraco Freight
Carriers).5

Thus under this section, a Court is prohibited from proceeding with the trial of a suit where following
conditions exist, namely (i) where there is a previously instituted suit between the same parties, (ii)
where the matter in issue is directly and substantially the same in both the suits and (iii) where a suit
is pending between the same parties, or between parties under whom they or any of them claim
litigating under the same title (Bijendra Kumar v. Basant Kumar)6 and (iv) The previously instituted
suit should be pending in the same Court in which the subsequent suit is brought or in another Court
in India having jurisdiction to grant the relief claimed (C.L.Tandon v. Prem Pal Singh; Channabasappa
Kamadal v. Kishan Chand).7 But the onus is heavily on the person who pleads that Section 10 Code
of Civil Procedure is attracted and the latter suit is to be stayed. It is not only to be established that
the second suit is for the same relief but also to be confirmed that it is on the same cause of action.
(Devanayagi Ammal v. Manicka Konar and Ramu Konar).8

However, mere filing of an application under Section 10 Code of Civil Procedure does not in any
manner put an embargo on the power of the Court to examine the merits of the matter. It is not for a
litigant to dictate to the Court as to how the proceedings should be conducted, it is for the Court to
decide what will be the best course to be adopted for expeditious disposal of the case. In a given
case the stay of proceedings of later suit may be necessary in Order to avoid multiplicity of
proceedings and harassment of parties. However, where subsequently instituted suit can be decided
on purely legal points without taking evidence, it is always open to the Court to decide the relevant
issues and not to keep the suit pending which has been instituted with an oblique motive and to
cause harassment to the other side (Pukhraj D.Jain v. G.Gopalakrishnan; Arch Diocese of Madras-
Mylapore Society v. Jayarose Ammal).9

The power to stay proceedings under the section can be exercised only in respect of suit pending in
one's own Court and not in another Court. Section 10 of the Code of Civil Procedure applies only to
suits and cannot apply where one of the two proceedings is not a suit (Inderpal Singh Hassanwalia v.
Bir Tibetan Woollen Mills).10 The word 'suit' is important for our purpose. As per the provisions of
Order 4 Rule 1 Code of Civil Procedure every suit shall be instituted by presenting a plaint to the
Court or such officer as it appoints in its behalf. Therefore, the word 'suit' ordinarily means a civil
proceeding instituted by presenting a plaint and it does not include the petitions filed under other
statutes (R. Subramanian v. Arulmighu Dhandayuthapani Swamy Thirukkoil Palani; Velu Achari v. The
Special Commissioner-cum-Commissioner).11 In a company proceedings, no plaint is presented and
hence, it cannot be regarded as a proceeding based on a suit. Therefore, when the proceedings are
not based on a suit, they cannot be regarded as a trial of a suit and hence, the suit for recovery of
money is pending before the Trial Court could not be stayed (S.S.Dhandapani v. The Branch Manager,
Indian overseas Bank).12

A Defendant in a summary suit would be entitled to apply to the Court for stay of the subsequently
instituted suit, this is so because the true intent of the provisions in Section 10 is that common
matters in issue in two suits should be ordinarily decided in a previously instituted suit. This would be
the position even if the subsequently instituted suit may be a summary suit (Indian Express
Newspaper (Bombay) Limited v. Basumati Private Limited).13

The Plaintiff cannot continue two suits seeking different reliefs arising out of same cause of action but
he can certainly withdraw one and continue the other if both were pending simultaneously that is why
there is a provision in the form of Section 10 of Code of Civil Procedure. Section 10 permits the Court
to stay the subsequently instituted suit if first suit is pending between the same parties involving the
same question. Where therefore first suit is withdrawn it cannot be said that the Defendant would be
vexed if the second suit is continued (Ramlal Maniram Navdhinge v. Maniram Patiram Navdhinge).14

One of the tests of the applicability of Section 10, Code of Civil Procedure, to a particular case is
whether, on the final decision being reached in the previous suit, such decision operates as res
judicata in the subsequent suit (M/s O.P.Steel Traders v. M/s Steel Strips Limited; Bijendra Kumar v.
Basant Kumar).15 To decide whether the second suit is hit by Section 10 or not the test is to find out
whether the plaint in one suit would be the written statement in the other suit or not. Once such test
is positive a decision in one suit would operate as res judicata in the other suit. That is the principal
test on which Section 10 is applied. The parties, in my view, may not be the same as one suit may
have one additional party that would not make Section 10 inapplicable (Raja Ram Estate v. Niharmoni
Law; Prism Entertainment Pvt. Ltd. v. Prasad Productions Pvt. Ltd.).16

From the principles mentioned above, following essential conditions for application of Section 10 of
the Code can be broadly enumerated as under:

(a) There must be two pending suits on same matter,

(b) These suits must be between same parties or parties under whom they or any of them
claim to litigate under same title,

(c) The matter in issue must be directly and substantially same in both the suits,

(d) The suits must be pending before competent Court or Courts,

 (e) The suit which shall be stayed is the subsequently instituted suit.

Merely because, the application under Section 20 of the Arbitration Act, 1940 is registered as a suit,
it does not become the suit within the meaning of the Code of Civil Procedure, and Section 10, Code
of Civil Procedure will have no application (Usha Rani v. Inder Mal and Sons).17 Section 10, Code of
Civil Procedure is not applicable to proceedings under the Ceiling Act, because by virtue of Section 37
only the procedure prescribed by the Code of Civil Procedure for trial of suits has been made
applicable. Section 10 relates to jurisdiction of Courts. The same will not apply (Kshetrapal Singh v.
State of U.P.; Ram Charan v. State of U.P.).18

Although Section 10 of the Code is so worded that, when the conditions therein specified are fulfilled,
the Court has no discretion in the matter, Section 87 of Representation of Peoples Act, 1951
expressly confers upon the Election Tribunal a discretion in the matter. That being so, when the
Tribunal, in its discretion, proceeded with the subsequently instituted election petition, the exercise of
that discretion cannot be challenged on the basis of the provisions of Section 10 of the Code (Shanit
Swaroop Sharma v. Abdul Rehman Farooqui).19

3. Provision Mandatory.

Though Section 10 is rule of procedure but it is mandatory (Manoharlal v. Heeralal).20 Thus, while
holding that the provisions of Section 10, Code of Civil Procedure are mandatory and the trial of a
subsequently instituted suit is bound to be stayed if any party makes a request before the Court
trying that suit that a previously instituted suit is pending determination either in the Trial Court, or
the first appeal or second appeal arising there from is pending for decision. But if the trial of the
subsequently instituted suit has proceeded without any objection and the same has terminated with
the delivery of the Judgment and the preparation of the decree of that Court then Section 10, Code of
Civil Procedure has no relevance because it only prohibits the 'trial of the suit' and no further (Munilal
v. Sarvajeet).21

4. Stay of Suit under Inherent powers of the Court.

It is well settled that the provisions of the Code are not exhaustive, for the simple reason that the
Legislature is incapable of contemplating all the possible circumstances which may arise in future
litigation and consequently for providing the procedure for them. Section 151 itself says that nothing
in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make
Orders necessary for the ends of justice. It has further been said that when the Code itself recognizes
the existence of the inherent power of the Court, there is no question of implying any powers outside
the limits of the Code. In a nutshell, therefore, inherent powers of the Court have to be resorted to
only ex debito justitiae (Manohar Lal Chopra v. Raj Bahadur Rao Raja Seth Hiralal; Dr. N.P. Tripathi v.
Dayamanti Devi).22 The inherent jurisdiction of the Court to make Orders ex debito justitiae has only
been affirmed by Section 151 of the Code, and it is well settled that jurisdiction cannot be exercised
so as to nullify express provisions of the Code. Where the Code deals expressly with a particular
matter, the provision should normally be regarded as exhaustive (N. Dutta v. Jardin Victor Limited).23

However, if the conditions provided under Section 10 of the Code are fulfilled then the Court should
not exercise its inherent power under Section 151 of the Code (Bihar Solvent Extraction Co v. Bihar
State Forest Development Corporation Limited).24 The powers under S. 151 of the Code of Civil
Procedure can be invoked only when there is no other provision in the Code for exercising such
powers (Gauri Bala Dutta v. IIIrd Addl Civil Judge, Varanasi).25 When there is a special provision in
the Code for dealing with the contingency of two such suits being instituted, recourse to the inherent
powers under Section 151 is not justified. The provisions of Section 10 do not become inapplicable on
a Court holding that the previously instituted suit is a vexatious suit or has been instituted in
violation of the terms of the contract. The power to stay a suit may be exercised strictly in
accordance with Section 10 of the Code of Civil Procedure and it must be deemed to be not
exercisable in any other manner or for purposes other than those set out in Section 10, Code of Civil
Procedure (ManoharlalChopra v. Raj Bahadur Rao Raja Seth Hiralal).26

If the conditions of Section 10 are not fulfilled and/or if the Court comes to the conclusion that it
would not be justified in exercising its jurisdiction under Section 10 of the Code of Civil Procedure, a
suit cannot be stayed by recourse to Section 151 of the Code of Civil Procedure. In view of the
existence of special provision in the Code for dealing with a particular contingency, recourse to the
inherent powers under

Section 151, Code of Civil Procedure is not justified. Such a case must be decided in accordance with
the special provision and not by recourse to inherent powers under Section 151 of the Code of Civil
Procedure (Smt. Tara Devi v. Smt. Kamala Gupta).27 The exercise of powers under Section 151 of
Code of Civil Procedure to grant stay when not all but only some of the conditions laid down in
Section 10 exist will clearly be contrary to the intention of the Legislature (Minocher Behramji
Damanial v. Hema N. Dadachanji; Aminchand Pyaralal v. Union of India).28 Even if the case is not
covered by the express provision of Section 10 of the Code we must see whether an Order for stay
ought to be made in the interest of justice without curtailing the rights which the litigant has to seek
redress in Court (Jugometal Trg Republike v. Rungta and Sons Private Limited).29

(a) Consolidation of the suits

The question that arises for consideration is whether in a case where the ingredients of Section 10,
Code of Civil Procedure are satisfied, has the Court no jurisdiction to direct consolidation of the two
suits? The Orissa High Court relying upon Manohar Lal Chopra v. Raj Bahadur Rao Raja Seth Hiralal,
AIR 1962 SC 527 held there can be no doubt that the Court has the power to direct the two suits
between the same parties where common question arises to be tried together (Dr. Guru Prasad
Mohanty v. Bijoy Kumar Dass).30 The question of consolidation of two suits would largely depend
upon the identity of the subject matter, the parties and convenience in proceeding with the trial
having regard to the nature of the evidence which is to be led in the suits and the precise controversy
which arises for trial in the two suits. For such determination as well it is necessary that the parties to
the two suits should disclose their cases in each of them to enable the trial Judge to come to a
conclusion whether it would be expedient to try the two suits together (Mohd Yusuf v. Ahmad
Miya).31

The Code of Civil Procedure does not specifically speak of consolidation of suits but the same can be
done under the inherent powers of the Court flowing from Section 151 of the Code of Civil Procedure.
Unless specifically prohibited, the Civil Court has inherent power to make such Orders as may be
necessary for the ends of justice or to prevent abuse of the process of the Court. Consolidation of
suits is Ordered for meeting the ends of justice as it saves the parties from multiplicity of
proceedings, delay and expenses. Complete or even substantial and sufficient similarity of the issues
arising for decision in two suits enables the two suits being consolidated for trial and decision. The
parties are relieved of the need of adducing the same or similar documentary and oral evidence twice
over in the two suits at two different trials. The evidence having been recorded, common arguments
need be addressed followed by one common Judgment. However, as the suits are two, the Court
may, based on the common Judgment, draw two different decrees or one common decree to be
placed on the record of the two suits (Chitivalasa Jute Mills v. Jayee Rewa Cement).32

(b) Transfer of suit

Merely because the plea under Section 10 of the Code of Civil Procedure has been rejected, the Court
is not denuded of the exercise of its power to transfer the suit if the ends of justice call for the
exercise of such power (Chitivalasa Jute Mills v. Jayee Rewa Cement).33
(c) Matter in issue

The words "matter in issue" used in Section 10 do not mean that entire subject-matter of the
subsequent suit and the previous suit must be the same. These words mean all disputed material
questions in the subsequent suit which are directly and substantially in question in the previous suit.
(Sagar Shamsher Jang Bahadur v. Union of India; Brijlal and Co v. MPEB).34 The idea is that as soon
as the previously instituted suit is decided, the subsequent suit will practically stand disposed of as its
conclusions would operate as res judicata and, therefore, in such a case only the subsequent suit
ought to be stayed under Section 10 of the Code (A.C. Naha Roy v. National Coal Development
Corporation Limited).35 Applying the test of res judicata for the stay of the suit the decision on
various points in question in the previous litigation between the parties pending at the stage of
appeal, would operate as res judicata in the present suit and the suit can be disposed of in terms of
the findings that may be given in appeal. An appeal is a continuation of the suit and, therefore, the
provision of Section 10 of the Code of Civil Procedure apply to the previous suit, which may be at the
stage of appeal (Sagar Shamsher Jang Bahadur v. Union of India; Brijlal and Co v. MPEB).

Normally, the question whether the matter in issue in a previously instituted suit between the same
parties is also directly and substantially in issue in a subsequent suit, is to be determined after the
parties have disclosed their defence in the two suits. In exceptional circumstances it might be open to
the Court, where both the suits are pending, to take into account the Allegations made in the plaint
of the two suits. What is, however, usually insisted upon is that the question whether the issues in
the two suits are substantially, the same, should be determined after disclosure of defence of the
Defendants in the two suits (Mohd Yusuf v. Ahmad Miya).36

A suit for eviction of tenant under Rent Control Law cannot be stayed under Section 10 on the ground
that the tenant has earlier instituted a suit for specific performance of contract against landlord on
the basis of agreement of sale of premises in question (N. M. Tripathi v. Dayawanti).37 Similarly,
proceedings under the U. P. Imposition of Land Ceiling on Land Holdings Act, 1961 cannot be stayed
due to the pendency of some other proceeding under the U. P. Consolidation of Holdings Act, 1954
(Ram Charan v. State of U.P.).38 The most appropriate test of applicability of Section 10 is to see if
the final decision in previous suit would operate as res judicata in the subsequent suit (M/s. Mehta
Gandhi Associates v. Shree Pipes).39

(d) Directly and substantially in issue.

The words "directly and substantially in issue" are used in contradistinction to the words "incidentally
or collaterally in issue". That means that Section 10 would apply only if there is identity of the matter
in issue in both the suits meaning thereby that the whole of the subject-matter in both the
proceedings is identical and not merely one of the many issues which arise for determination in the
two suits. Therefore, this means that Section 10 of Code of Civil Procedure would apply only if there
is identity of the matter in issue in both the suits amounting that the whole gamut of the subject
mater in both proceedings is one and same identity and not merely one of the many issues arising for
consideration before the Court of law in the considered opinion of this Court (Arch Diocese of Madras-
Mylapore Society v. Jayarose Ammal).40

One test of the applicability of Section 10 to a particular case is whether on the final decision being
reached in the previous suit, such decision would operate as 'res judicata' in the subsequent suit.
What is essential is that there must be 'substantial identity between the matters in dispute and
parties' in the earlier and later suits (R.Srinivasan v. Southern Petrochemicals Industries Corporation
Limited).41

There is however a conflict regarding the exact scope of Section 10. One view is that Section 10 will
apply only if there is a complete identity of the subject-matter in the two suits, so that decision in
one suit will operate as res judicata in the other. The other view is that complete identity of the
subject-matter is not necessary to attract the application of Section 10 and if a matter directly and
substantially in issue in a previously instituted suit is also directly and substantially in issue in a later
suit then under Section 10 the later suit shall be stayed (Ram Narain v. Ram Swarup).42

There must be identity of matter in issue between the parties in the suits. It is not sufficient if only
one of the issues is common (Naha Ray v. N. C. D. C.).43 If identity of issues is substantial, it is
enough to stay the subsequent suit, and it is not necessary that the relief claimed should also be
same (Challapathi v. Swadeshi Sugar).44 In a given case, it may not be possible for the Court to
come to the conclusion whether the matter in issue in both the suits is directly and substantially the
same or not till written statements are filed; and if an application under Section 10 of the Code for
staying further proceedings of a suit is rejected on such a ground, then no exception can be taken to
such a decision. But it is not correct to say as a general proposition of law that till a written
statement is filed by the Defendant in the subsequent suit his application for staying further
proceedings under Section 10 of the Code cannot be entertained and must be rejected as premature
(Raunaq International Limited v. Ota Kandla Private Limited).45 Where there is no material on the
record like copy of plaint, written statement, issues pertaining to earlier suit, to show that the matter
in issue in the present suit is also directly and substantially in issue in the previously instituted suit,
the application under section 10 cannot be allowed (Durga Dass v. Gita Devi).46

(e) Explanation

In the explanation the words 'on the same cause of action' are very material and give colour to the
expression 'matter in issue' occurring in the substantive part of the section. It, thus, follows that the
mere fact that some issues are common in the two suits would not necessitate the stay of the
subsequent suit under Section 10. Although the words 'matter in a suit' cannot be held necessarily to
mean the subject-matter in dispute, it seems clear that they must mean the entire matter in
controversy and not one of the several issues in the case. If the intention of the legislature had been
to widen the scope of Section 10 so as to make it co-extensive with Section 10 the language
employed would have been identical (Vijay Kumar v. Manohar Lal).47

(f) Court having jurisdiction

It is not enough that there is substantial identity of the subject matter of the suit but that the Court
in earlier suit should have jurisdiction to grant the reliefs claimed in the later suit (Minocher Behramji
Damanial v. Hema N. Dadachanji).48 It is essential that the Court in which the first suit is pending
must be competent to grant relief claimed therein and also the one claimed in subsequent suit
(Minocher v. Hema; Mirta Lina v. Finlay Mills).49 If the Court in which previously instituted suit has no
jurisdiction to try it, the subsequent suit cannot be stayed. However, it is not necessary that the
Court trying the previously instituted suit should have territorial jurisdiction over the subsequent suit.
For the purposes of examining which of the suit is previously instituted, the relevant date is the date
of presentation of the plaint and not the date of admission or actual Order of registering it. Where a
wife has instituted a suit for maintenance against her husband at one place, and the husband has
filed a suit for divorce in another place against the wife, the application for stay of proceeding of
divorce, under Section 10 of the Code of Civil Procedure can be rejected if the Court hearing the
matter of maintenance has no jurisdiction to grant relief of divorce between the parties (Meera
Shankar Lal v. Shankar Lal).50

(g) Previously instituted suit must be pending

The previously instituted suit between the parties must be pending one:

(a) in the same Court in which the subsequent suit is brought, or

 (b) in any Court in India, or

(c) in any Court beyond the limits of India established or constituted by the Central
Government, or

(d) before the Supreme Court (Arumugha Udayar rep. by Power Agent Periyasami v.
Lakshmi).51

The word 'suit' includes appeal and even if second appeal is lying undecided it is a previously
instituted suit for the purposes of the section (Ambika Sahu v. Sumitra Sahu).52 The word 'suit' used
in Section 10 Code of Civil Procedure refers to a suit instituted by presenting a plaint before a Civil
Court and it does not include the petitions filed under other statutes (R. Subramanian v. Arulmighu
Dhandayuthapani Swamy Thirukkoil Palani; Velu Achari v. The Special Commissioner-cum-
Commissioner).53

The Court could not take the aid of Section 10 of the Code for stay of the suit where there is no
previously instituted suit pending in a competent Court between the parties raising directly and
substantially the same issues as raised in the present suit (Mayar (H.K.) Ltd. v. Owners and Parties,
Vessel M.V. Fortune Express).54

If the execution proceedings are pending after the decision in the previous suit, Section 10 has no
application. It is not necessary that the suit must be a regular one. It is sufficient if the suit or
proceeding is such to which the provisions of Section 10 of the Code are applicable e.g. the
Arbitration proceedings in the Court or the suits of summary nature. Apart from suits, the
proceedings like that of probate and guardianship, which are covered under Section 141 of the Code
of Civil Procedure are also attracted by the provisions of Section 10.

Section 10 of the Code of Civil Procedure is not the permissive provisions, but is a restrictive
provision and cannot be interpreted to hold that since only proceeding with the trial of issue or suit is
restricted by Section 10, Code of Civil Procedure, therefore, it impliedly accepts maintainability of
more than one suit by one Plaintiff. Said plea is devoid of any force. Section 10, Code of Civil
Procedure applies only to those suits which are legally maintainable. Section 10 cannot be invoked to
make the subsequently filed suit maintainable. Other view will be just contrary to entire scheme of
the procedure provided for trial of suits in Code of Civil Procedure. Section 10 prohibits simultaneous
trial of issue and if, due to any reason, trial of suit proceeded, the decision given on issue which is
earlier in time has been made final by Section 11, Code of Civil Procedure. When specific provisions
of law prohibits trial of even maintainable suit., then interpreting Sections 10 and 11 of the Code of
Civil Procedure as a permissive provision making maintainable two suits simultaneously will be
against the legislative intention (Hari Ram v. Lichmaniya).55

The idea is that as soon as the previously instituted suit is decided, the subsequent suit will
practically stand disposed of as its conclusions would operate as res judicata and, therefore, in such a
case only the subsequent suit ought to be stayed under Section 10 of the Code (A.C. Naha Roy v.
National Coal Development Corporation Limited).56

(h) Trial

Section 10 of the Code of Civil Procedure prohibits any Court from proceeding 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. The word "trial" has not been defined in the Code and that word
occurring in Section 10 will have to be construed in the light of scheme of the Code itself. It appears
that though the word "trial" standing by itself is susceptible of both the narrow and the wider
meaning, it is in a narrow sense that the word "trial" has been used in Section 10 of the Code
(Sujanbai Haribhau Kakde v. Motiram Gopal Saraf).57
The course of action which the Court has to follow according to Section 10 is not to proceed with the
'trial' of the suit but that does not mean that it cannot deal with the subsequent suit any more or for
any other purpose. In view of the object and nature of the provision and the fairly settled legal
position with respect to passing of interlocutory Orders it has to be stated that the word 'trial' in
Section 10 is not used in its widest sense (Indian Bank v. Maharashtra State Co-operative Marketing
Federation Ltd.).58 Thus, the Court had ample jurisdiction to appoint a receiver as contemplated
under Order XL Rule 1 of the Code of Civil Procedure (Lakhshmi Devi v. Rajender Prasad Sao)59 or
disposing of an application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil
Procedure (Smt. Sneh Lata Mathur v. Shri Brij Raj Bahadur; Baburao Vithalrao Sulunke v. Kadarappa
Prasappa Dabbannavar; V.R. Balakrishnan Nadar v. R. Velayudhan Nadar).60 The stay Order passed
under Section 10 does not affect Courts power to pass interim Orders or the disposal of amendment
applications in the subsequent suit (Lakshmi Devi v. Rajendra Prasad).61

When application under Section 10, Code of Civil Procedure is presented, the Court in which the suit
is pending is to pass the Orders and not the Court in which the previous suit was pending. An appeal
being continuation of the suit, pendency of the second appeal here would mean that the previous
suits were pending, no Order of stay can be passed in the second appeals staying further proceedings
in the subsequent suit (Ambika Sahu v. Sumitra Sahu).62

Section 10 of the Code of Civil Procedure does not prevent the Court, in its discretion from staying
the proceedings in a subsequently instituted suit at a stage earlier than the actual trial. If it is
satisfactorily demonstrated that the second suit is 'parallel' to the first suit, then the best course for
everybody concerned would be put a stay upon, or arrest altogether, the second suit, at the earliest
possible moment. The test whether previously instituted suit and a subsequently instituted suit are
'parallel' is that if the first was determined, the matters raised in the second suit would be
Respondent judicata by reason of the decision of the prior suit (Durgaprasad v. Kantichandra
Mukherji).63

If there is already a suit for maintenance in a Court, another suit in some other Court between the
same parties for the same claim is barred. The intendment of Section 10 is to prohibit any Court from
trying a suit in which the matter in issue is directly and substantially in issue in another suit
previously instituted in that Court or in another Court. If the provisions of Section 10 are satisfied,
the proceedings in one Court can be stayed on the application of the aggrieved party. Where two
different statutes provide specifically for two different claims if the conditions specified therein are
satisfied, either of them cannot be denied to the claimant simply on the ground that two reliefs have
been claimed at one and the same time (Adigarla Simhachala v. Adigarla Papamma).64

(i) Trial in a summary suit

The object underlying the summary procedure is to prevent unreasonable obstruction by a Defendant
who has no defence. There is thus a "trial" in a summary suit though by the summary procedure. The
Court gives a hearing to the parties on the summons for Judgment and may refuse to grant leave to
defend if it finds that the facts disclosed by the Defendant do not indicate that he has a substantial
defence to raise or that the defence intended to be put up by the Defendant is frivolous or vexatious.
In that event, the Plaintiff is entitled to Judgment forthwith. If he is given leave to defend, the suit
shall be decided by the same procedure as applicable to suits instituted in ordinary manner. It is
obvious from the above discussion that in a summary suit also there is trial by the Court, though by
the summary procedure laid down in Order XXXVII, before a decree is passed. The procedure of trial
is set out in Rule 3. It starts with the service of summons for Judgment in Form 4-A in Appendix B on
the Defendants and ends with the hearing on such summons for Judgment, either with a Judgment or
with leave to defend, in which case further trial will be held which will be governed by the same
procedure as is applicable to the trial of suits instituted in the ordinary manner. The word "trial" has
not been defined in the Code of Civil Procedure It appears to us that though the word "trial" standing
 by itself is susceptible of both the narrow and the wider meaning, in the context and setting of Order
XXXVII, "trial" has to be construed to mean the entire proceeding before the Court after the
Defendant enters appearance and is served with summons for Judgment until the pronouncement of
the Judgment (The Maharashtra State Cooperative Marketing Federation Limited v. Indian Bank;
Harish Chandra v. Triloki Singh; D. Saroja v. Saraswathi 2008 (2) CTC 150).65 The word 'trial' used in
Section 10 of the Code is not to be interpreted in its widest sense and it does not include trial of a
subsequently instituted summary suit (Indian Bank v. Maharashtra State Co-operative Fedn. Ltd.).66

The Code of Civil Procedure, 1908

By Anupam Srivastava
© Manupatra Information Solutions Pvt. Ltd.

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