Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 986/2022, CM 41060/2022 & CM 41061/2022
KAILASH KUMAR ..... Petitioner
Through: Mr. Ashim Shridhar, Adv.
versus
RUDRA DEV DECEASED & ORS. ..... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT (ORAL)
% 27.09.2022
1. Mr. Ashim Shridhar, learned Counsel for the petitioner, after
some hearing, sought leave to withdraw this petition with
liberty to seek consolidation of CS DJ 599/2021 with CS SCJ
1737/2021, as per law.
2. Leave and liberty is granted as prayed for.
3. However, as this case raises an issue which may have a
cascading effect on other cases, I deem it appropriate to express
my views thereon.
4. The issue is limited.
5. CS DJ 599/2021 ( Rudra Dev v. Kailash Kumar ) was filed by
the respondents against the petitioner for recovery of an amount
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of ₹ 9,20,142/-.
6. The petitioner moved an application under Section 10 of the
Code of Civil Procedure, 1908 (CPC) for stay of trial of CS DJ
64/2021, on the ground that CS SCJ 1737/2021, dealing with
the same issue, was earlier filed and pending before the learned
Senior Civil Judge (“the learned SCJ”).
7. The learned Additional District Judge (“the learned ADJ”) has,
th
by the impugned order dated 6 July 2021, dismissed the
application on the ground that the learned SCJ, in seisin of CS
SCJ 1737/2021, lacked the pecuniary jurisdiction to decide CS
DJ 599/2021.
8. The issue that arises for consideration is, therefore, whether, in
order for trial of a suit, instituted later in point of time, to be
stayed under Section 10 of the CPC, on the ground that an
identical issue is pending in a suit instituted earlier in point of
time, one of the pre-requisite conditions is that the Court seized
with the earlier suit must possess pecuniary jurisdiction to
decide the later suit .
9. Section 10 of the CPC reads thus:
“ 10. 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
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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.”
10. Section 10 prohibits the Court seized of the later suit from
proceeding with trial thereof. Vivisected to its essentials, the
ingredients of Section 10 are that
(i) the matter in issue in the later suit is directly and substantially in
issue in the earlier suit,
(ii) both suits are between the same parties or between the parties
under whom they or any of them claim litigating under the same
title,
(iii) the earlier suit is pending (a) in the same Court or (b) in
any other Court in India having jurisdiction to grant the relief
claimed , or (c) in any Court beyond the limits of India
established or continued by the Central Government having like
jurisdiction or (d) before the Supreme Court.
11. The nub of controversy is the expression “having jurisdiction to
grant the relief claimed”. Does, this expression means that the Court
seized with the earlier suit should have the jurisdiction to grant the
relief claims in the earlier suit, or the relief claimed in the later suit?
12. The words “where such suit is pending”, read in conjunction
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with the words “having jurisdiction to grant the relief claimed” makes
it apparent, to me, that the issue of jurisdiction has to be decided vis-à-
vis the suit before the Court before which the earlier suit is pending,
and not the suit before which the later suit is pending.
13. I may note that the Division Bench of the High Court of
1
Bombay has, in Manilal Premji Gala v. Boman P. Irani , held in
para 16 of the report, thus:
“16. It is not possible to accept the contention of the learned
Counsel for appellant. We have already pointed out that,
consistently and overwhelmingly, the courts in this country
have interpreted section 10 and held that the Court
entertaining the subsequent suit should have the jurisdiction
to grant the relief claimed in the first suit in orde r to enable
the stay of the second suit . It is undoubtedly true that when all
these decisions were renderd. Explanations VII and VIII were
not on the statute book. That, however, makes no difference to
the situation, in our judgment. The fact that Parliament has
now introduced Explanations VII and VIII does not and
cannot detract from the interpretation consistently given to
Section 10 of the Code which in no way has been amended. In
our judgment, therefore, notwithstanding the amendment
made in Section 11 by addition of Explanations VII and VIII,
the interpretation consistently given to Section 10 of the Code
must remain unaffected.
(Emphasis supplied)”
14. With greatest respect, it appears to me that the above noted
view expressed by a Division Bench of the High Court of Bombay is
contrary to the plain wording of Section 10. The expression “having
jurisdiction to grant the relief claimed”, as employed in Section 10, on
1
2002 Supp Bom CR 623
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a plain reading, appears to pertain to the Court before which the
previously instituted suit is pending, and not the Court before which
the later instituted suit is pending . I, therefore, express my respectful
disagreement with the aforenoted decision of the High Court of
Bombay.
15. That, however, is not the main issue in controversy. The
question that arises is, whether the Court in seisin of the earlier
instituted suit “should have jurisdiction to grant the relief claimed”.
To reiterate, does this mean that the Court which earlier instituted suit
should have the jurisdiction to grant the relief claimed in that suit, or
to grant the relief claimed in the later instituted suit, the trial of which
is sought to be stayed? The learned ADJ has, in the impugned order
th
dated 6 July 2022, inclined to the later view.
16. Section 10, plainly read, is somewhat ambiguous in this regard.
The issue, however, appears to be settled by the judgment of the
Supreme Court in National Institute of Mental Health & Neuro
2
Sciences v. C. Parameshwara , ( NIMHASNS , hereinafter) which is
regarded as an authority on Section 10. Para 8 of the report in the said
case read thus:
“8. The object underlying Section 10 is to prevent Courts
of concurrent jurisdiction from simultaneously trying two
parallel suits in respect of the same matter in issue. 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
2
(2005) 2 SCC 256
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substantially in issue in previously instituted suit. The
language of Section 10 suggests that it is referable to a suit
instituted in the civil Court and it cannot apply to proceedings
of other nature instituted under any other statute. 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. The
fundamental test to attract Section 10 is, whether on final
decision being reached in the previous suit, such decision
would operate as res-judicata in the subsequent suit. Section
10 applies only in cases where the whole of the subject-matter
in both the suits is identical. The key words in Section 10 are
"the matter in issue is directly and substantially in issue" in
the previous instituted suit. The words "directly and
substantially in issue" are used in contra-distinction to the
words "incidentally or collaterally in issue". Therefore,
Section 10 would apply only if there is identity of the matter
in issue in both the suits, meaning thereby, that the whole of
subject-matter in both the proceedings is identical.”
17. The Supreme Court has used, not once, but twice, the
expression “courts of concurrent jurisdiction”. The expression
“concurrent jurisdiction” implies that the jurisdiction of both Courts,
both subject-wise as well as pecuniary must be the same. Though Mr.
Shridhar attempted to submit that the expression “concurrent
jurisdiction” should mean that both Courts should have the jurisdiction
to try the issue, and could not be treated as extending to pecuniary
jurisdiction, there appears no reason for such a restricted interpretation
to be accorded to the words “courts of concurrent jurisdiction”
employed by the Supreme Court. The fact that the Supreme Court
says that both Courts should have concurrent jurisdiction, indicates
that the jurisdiction of both Courts, pecuniary and otherwise, must be
the same.
18. “Concurrent” is defined in P. Ramanatha Aiyars’ Law Lexicon
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as “having the same authority, acting in conjunction, existing together
agreeing in the same act; contributing to the same event;
contemporaneous; running together; co-operating; contributing to the
same effect; accompanying; conjoined; associate; concomitant; joint
and equal; Running together in time or space; covering the same
ground”. A prisoner who is directed to undergo, two sentences
concurrently has to undergo both the sentence only once for the
duration of that period of concurrence.”
19. The principle of concurrence, when it applies to judicial fora,
therefore, implies equality of authority. Both Courts should, therefore,
have jurisdiction to try both suits, it is only then the Courts can be said
to be the Courts of concurrent jurisdiction.
20. Mr. Shridhar sought to press into service Section 11 of the CPC,
which deals with res judicata , especially Explanation VIII thereto, to
submit that, if such an interpretation were granted, it would run
contrary to Explanation VIII to Section 11. Section 11 and
Explanation VIII thereto read thus:
“11. 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, litigating 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 VIII.— An issue heard and finally decided by a
Court of limited jurisdiction, competent to decide such issue,
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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.”
21. The submission is, in my considered opinion, not acceptable.
No doubt, for applying the principle of res judicata, pecuniary
jurisdiction of the two Courts is not material, in view of the clear
words in Explanation VIII “notwithstanding that such Court of limited
jurisdiction was not competent to try such subsequent suit”. Res
judicata , as a principle, therefore, would apply irrespective of the
pecuniary jurisdiction of the two Courts concerned, or whether the
Court seized with the earlier suit did or did not, possess the
jurisdiction to try the suit instituted later in point of time.
22. The Supreme Court in, NIMHANS and other decisions dealing
with Section 10 has held that one of the definitive tests, while
applying Section 11, is whether a decision in the earlier instituted suit
would operate as res judicata in the later suit. Though a finding in an
earlier instituted suit would, if other conditions of Section 11 apply,
operate as res judicata in the later instituted suit irrespective of the
pecuniary jurisdiction of the two courts, and an additional condition is
prescribed in the statute for a Section 10 to apply, which is, that the
earlier suit must have jurisdiction to grant the relief claimed. The
expression “jurisdiction to grant the relief claimed”, applying
NIMHANS , would imply that both Courts should have concurrent
jurisdiction, i.e. that the Court in seisin of the earlier instituted suit
must possess the pecuniary jurisdiction to decide the suit instituted
later in point of time. That any finding in the earlier suit must operate
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as res judicata in the later suit is an additional consideration which
has to be satisfied in order for Section 10 to apply. These are two
distinct considerations, both of which are cumulatively required to be
satisfied for Section 10 to apply in a particular case.
23. I am in agreement, therefore, with the finding of the learned
ADJ that, as the Court seized with CS SCJ 1737/2021 did not have the
pecuniary jurisdiction to grant the relief claimed in CS DJ 64/2021, no
case for stay of trial of CS DJ 64/2021 was made out.
24. As noted in the beginning of this judgment, Mr. Shridhar seeks
to apply for consolidation of the two suits. Leave and liberty is granted
to him to do so. Any such application if made would be decided on its
own merits.
25. Needless to say, this Court has not, in the present judgment,
examined the aspect of consolidation. The Court seized with the
prayer for consolidation would, therefore, decide the issue irrespective
of the observations in this decision.
26. This petition is dismissed as withdrawn. Miscellaneous
applications do not survive for consideration and are disposed of.
C.HARI SHANKAR, J
SEPTEMBER 27, 2022
r.bararia
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