“Law Master’s Publications

‘Stay of Suit’

Prof. .S. D. Bhosale

(..4..)

STAY OF SUITS

QUESTION BANK

1. Explain the principle of ‘Res-judicata’.

2. Explain the objects and principles of ‘Res-judicata’.

3. Explain the object and conditions of Res-sub-judice fully.

4. Explain the principles of Res-judicata and Res-sub-judice and give the differentiating

points between them.

5. What is the rule of Res-sub-judice? Distinguish it from Res-judicata.

6. Under what conditions can a suit stay? Explain, giving relevant provisions of the

Code of Civil Procedure.

SHORT NOTES

1. Res-judicata.

2. Res-sub-judice.

3. Enforcement of foreign judgment.

The Code provides some bars for entertaining certain suits. Some of those bars are

mentioned under S. 10, 11 and 12 of the Code. The Code has inserted this scheme with the

object of avoiding multiplicity of proceedings and conflict of decisions.

I. STAY OF SUIT (Res-sub-judice) (S. 10).-

This section deals with stay of civil suits or Res-sub-judice. It provides that 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 and that

the Court in which the previous suit is pending is competent to grant the relief claimed¹.

S10 Stay of suit- 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

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‘Stay of Suit’

Prof. .S. D. Bhosale

In other words, no Court shall proceed with the trial of any suit in which the 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 was competent

to grant the relief sought e.g. if ‘A” files a suit against ‘B’ and ‘C’ for partition of ‘K’, ‘Kh’

and ‘G’ properties on 01/01/15. ‘B’ on 01/06/15 filed another suit against ‘A’ and ‘C’,

asking for partition of the same properties. The Court will stay and subsequently instituted

suit. The object is to prevent a multiplicity of suits on the same issues between the same

parties and to avoid contrary judgments.

(1) Object of (S. 10)-

The object of this section is to prevent courts of concurrent jurisdiction from

simultaneously entertaining and adjudicating upon two parallel litigations in respect of the

same cause of action, the same subject matter and the same relief². To avoid a multiplicity

of proceedings and conflicts of decisions is the main purpose of this section.

(2) Conditions to apply (S. 10)-

For the application of S. 10, the following conditions must be satisfied-

(i) Existence of two suits, one which is previously instituted and another which is

subsequently instituted.

(ii) Parties should be the same in both suits.

(iii) Issue in the subsequent suit should be substantially an issue in the previous suit.

(iv) 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 outside India constituted

by the Central Government or before the Supreme Court).

(v) The Court in which the previous suit is instituted must have jurisdiction to grant the

relief claimed in the subsequent suit.

(vi) Litigation should be under the same title in both suits.

As soon as the conditions mentioned above are fulfilled, Court has to stay

subsequent suit. Court has no discretion to differ.

However, there is no such bar on the power of Indian Courts from trying

subsequently institute a suit if the previously instituted suit is pending in a foreign court

(Explanation to S. 10).

Decree passed in contravention of S. 10 is not a nullity and, therefore, cannot be

having jurisdiction to grant 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.

²National Institute of Mental Health and Neuro Sciences v. C. Parmeshwara (2004 AIOL Com 1243)

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‘Stay of Suit’

Prof. .S. D. Bhosale

disregarded in execution proceedings³.

II. RES -JUDICATA (S. 11)-

S. 11 incorporates the principle of Res-judicata. Res-judicata is made up of two

words viz. ‘res’ means ‘a thing’ or ‘a matter’ or ‘a question’, and ‘Judicata’ means

‘adjudged’, ‘adjudicated’ or ‘finally decided. Thus the expression ‘Res-judicata’ means ‘a

thing or matter already adjudged, or adjudicated or decided’. It is said that res is judicata,

i.e. the matter, once decided, shall not be adjudged again. S. 11 relates to a matter already

adjudicated upon i.e. the matter once decided bars subsequent suit in which the matter

directly and substantially in issue is previously decided⁴.

S. 11 enacts that once a matter is finally decided by a competent court, no party can

be permitted to reopen it in subsequent litigation. Thus, if the suit of partition is once

decided between ‘A’, ‘B’, ‘C’ parties relating to ‘K’, ‘Kh’ and ‘G’ properties, no fresh suit

can be decided between the same parties relating to same properties.

In Hitendra Borker v. State of Chhatisgarah (AIR 2015 Chh. 165)

Chhattisgarh H.C held that- Subsequent writ petition based on the same cause of action and

³Sheopat Rai v. Warak Chand. (46 I.C. 419).

⁴S. 11 Res- judicata- No Court shall try any suit or issue in which the matter directly and substantially in issue has

been directly and substantially in issue in a former suit between the same parties, or between parties under whom they

or any of them claim, litigation under the same title, in a Court competent to try such subsequent suit or the suit in

which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I. – The expression “former suit” shall denote a suit which has been decided prior to the suit in question

whether or not it was instituted prior thereto.

Explanation II. – For the purpose of this section, the competence of a Court shall be determined irrespective of any

provisions as to a right of appeal from the decision of such Court.

Explanation III. – The matter above referred to must in the former suit have been alleged by one party and either

denied or admitted, expressly or impliedly, by the other.

Explanation IV. – Any matter which might and ought to have been made ground of defence or attack in such former

suit shall be deemed to have been made ground of defence or attack in such former suit shall be deemed to have been

a matter directly and substantially in issue in such suit.

Explanation V. – Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes

of this section, be deemed to have been refused.

Explanation VI. – Where persons litigate bona fide in respect of a public right or of a private right claimed in common

for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to

claim under the persons so litigating.

[Explanation VII. – The provisions of this section shall apply to a proceeding for the execution of a decree and

references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding

for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that

decree.

Explanation VIII. – As issue heard and finally decided by a Court of limited jurisdiction, competent to decide such

issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not

competent to try such subsequent suit or the suit in which such issue has been subsequently raised.]

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‘Stay of Suit’

Prof. .S. D. Bhosale

claiming some relief as claimed in an earlier writ petition is barred by the rule of res-

judicata.

(1) Purposes of incorporation of the doctrine-

The rule of Res-judicata is based on the following maxims viz-

(i) ‘interest republicae ut sit finis litium’ i.e. it is in the interest of the State that there should

be an end to litigation.

(ii) ‘nemo debet lis vexari pro una et eadem cause’ i.e. no person should be vexed

(troubled) twice over the same cause.

(iii) ‘res judicata pro veritate occipiture’ i.e. a judicial decision must be accepted as

correct.

(2) Conditions to apply the doctrine of Res-judicata-

The following conditions are necessary for the operation of the doctrine of Res-

judicata-

(i) There must be two suits, one former suit and the other subsequent.

(ii) The Court which decided the former suit must be competent to try the subsequent

suit.

(iii) The matter directly and substantially in issue must be the same, either actually or

constructively, in both suits.

(iv) the matter directly and substantially in issue in the subsequent suit must have been

heard and finally decided by the Court in that former suit.

(v) the parties must be the same in both suits.

(vi) Such parties must have been litigating under the same title in the former suit.

Litigating under the same title means litigating in the same capacity. Thus, a suit

brought by a person to recover possession from a stranger of temple property claiming it

as heir of the deceased priest is no bar to a suit by him as manager of the temple property

if the first suit is dismissed on his failure to produce the succession certificate for the

two suits arise under different capacities i.e. title.

(3) Res-judicata and Res-sub-judice-

The rule of Res-judicata under S. 11 is distinguishable from the rule of Res-sub-

judice (Stay of suit) under S. 10. The difference is as follows-

(i) Res-judicata relates to a matter already adjudicated upon, i.e. a matter on which

judgment has been pronounced, while Res-sub-judice relates to a matter pending the

judicial enquiry.

(ii) Res-judicata bars the trial of a suit or an issue which has been decided in a former

suit, whereas, Res-sub-judice bars the trial of a suit pending decision in a previously

instituted suit.

“Law Master’s Publications

‘Stay of Suit’

Prof. .S. D. Bhosale

(4) The rule of constructive Res-judicata (Explanation iv to S. 11)-

The matter directly in issue may be actually in issue or constructively in the issue.

In both, these matters rule of Res-judicata applies. A matter is actually in issue when it is

alleged by one party and denied by the other. However, it is constructively in issue when

the matter might or ought to have been made a ground of attack or defence in the former

suit, which is not made. Explanation (iv) to S. 11 incorporates this principle of constructive

Res-judicata. It lays down that any matter which might and ought to have been made

ground of defence or attack in the such former suit shall be deemed to have been a matter

directly and substantially in issue in such suit. It is no answer to a plea of Res-judicata that

an argument which could be advanced was not advanced in the previous suit. For example,

if a suit is filed by A for the partition of joint Hindu family property without mentioning

all properties in the suit and the Court decrees the suit. A can not again file a new suit

mentioning those remaining properties because the subsequent suit for partition of reaming

property is hit by the rule of constructive Res-judicata. It is because in the previous suit, he

ought to have mentioned all the properties of the Joint family in a partition.

IV. BAR TO FURTHER SUIT (S. 12).-

Where a plaintiff is precluded by rules from instituting a further suit in respect of

any particular cause of action, he shall not be entitled to institute a suit in respect of such

cause of action in any Court to which this Code applies (S. 12).

The rules that bar a fresh suit for the same cause are as follows-

(1) Omission to sue in respect of part of a claim (Order-2, Rule-2).

(2) Decree against plaintiff by default bars fresh suit (Order-9, Rule-2).

(3) Abatement of suit or its dismissal under Order 22 bars fresh suit. (Order-22, Rule-9).

(4) Withdrawal of a suit or abandonment of part of a claim without leave of Court bars a

fresh suit (Order-23, Rule-1) etc.

NOTE-

FOREIGN JUDGMENT:-

S. 13 and 14 deal with the applicability of the rule of Res-judicata in case of foreign

judgment. Provisions under the above sections embody the principle of international law

that a judgment delivered by a foreign Court of competent jurisdiction can be enforced by

an Indian Court and will operate as Res-judicata.

‘Foreign Court’ means a Court situated outside India and not established by the

authority of the Central Government. Judgment delivered by it is called as ‘foreign

judgment’.

(1) Judgment of foreign Court as Res-judicata (S. 13):-

It provides that a foreign judgment will operate as Res-judicata except in the

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‘Stay of Suit’

Prof. .S. D. Bhosale

following circumstances.

i) Where the judgment has not been pronounced by the Court of competent jurisdiction.

ii) Where the judgment is not given on the merits of the case.

iii) Where on the face of the proceedings, the judgment appears to be founded on an

incorrect view of Indian Law or International Law.

iv) Where the proceedings in which the judgment was obtained are opposed to natural

justice.

v) where it has been obtained by fraud.

vi) where it sustains a claim founded on a breach of any law in force in India.

In Narsimha Rao v. Venkata Lakshmi⁵

Facts- A husband obtained a decree of divorce from an American court against his wife

residing in India, pleading that he was a resident of America.

The Supreme Court held- that the decree of divorce was without jurisdiction inasmuch

as neither the marriage was solemnised nor the parties last resided together in America.

Hence, it cannot be enforced by an Indian Court.

(2) Presumption as to the foreign judgment (S. 14)-

It provides that if, in an Indian Court, a certified copy of any foreign judgment is

produced, it shall be presumed to be genuine; however, the party challenging its

genuineness can prove it to be not genuine.

*****

⁵(1991) 3 SCC 451.