Section 10 of the Code of Civil Procedure provides the rule with regard to stay of suits where things are under consideration or pending adjudication by a court. That section reads:
“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, 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.”
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The object of this section is to prevent two courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. It is to obviate two contradictory decrees being passed in respect of the same subject-matters between the same parties that the present section has been enacted.
In order to attract the application of this section it is necessary that the following conditions must be fulfilled:
(1) A previously instituted suit is pending in a court;
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(2) The matter in issue in the suit is also directly and substantially in issue in a previously instituted suit;
(3) 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 in the Supreme Court.
(4) The court in which the previous suit is pending has jurisdiction to grant the relief claimed in the subsequent suit;
(5) The parties in the subsequent suit must be the same as in the previously instituted suit; and
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(6) The parties must be litigating under the same title in both the suits.
It may, however, also be noted that the term “suit” in this section includes appeal.
The words of Section 10 are mandatory and the test to determine whether the matter in issue in the second suit is also directly and substantially in issue in the previously instituted suit is whether if the first suit is determined the matters raised in the second suit will be res judicata.
The second suit, it must be noted, is not dismissed as barred. It is only trial of the suit that is not proceeded with and is stayed. The section in no bar to the institution of a second suit. In many cases it is not necessary for a party even to institute a second suit in order to save the period of limitation.