The Code of Civil Procedure, 1908 (hereinafter referred to as the "Code") is considered as one of the most efficacious and carefully drafted Code regarding Civil proceedings. Each provision of the Code deals meticulously with a given situation.
Section 10 of the Code deals with the Doctrine of Res-Subjudice which means "under consideration". The following provision is one of the most efficacious procedural aspect of the Code which provides for stay on suits that are pending litigation regarding the same issue, between same parties or between parties litigating under the same title. Thus, if A has filed a suit for recovery of money from B in X Court, he cannot subsequently file another suit in Y Court on the same issue and against the same party. The provision was enacted solely for the purpose of removing multiplicity of proceedings.
Thus, whenever a person who is a party to an earlier proceeding on the same subject-matter and against the same person, he can raise an application for stay of suit of the subsequent proceeding as per Section 10 of the Code. But, the question arises as to when can such an application be moved?
As a matter of practise, an application for Stay of suit can be moved once the Written Statement on behalf of the defendant is filed. But can such an Application be moved even before filing of the Written Statement?
In Hoshiar Singh v. Mahender; 1999 SCC OnLine P&H 1323, the hon'ble High Court of Punjab & Haryana was posed with this particular question. In this case the Petitioners contended that the Trial Court had erred in allowing the Application for Stay of Suit before the filing of the Written Statement. The hon'ble High Court relied on its previous decision in Rup Chand Dharam Chand Kanpur v. Basant Lal Banarasi Lal Dhuri; AIR 1975 P&H 171 wherein it was held that "[T]hough normally the Court would not allow a party to move an application under Section 10 CPC unless he has filed his written statement, the Court would entertain the application of the defendants for stay in a case where he has annexed a copy of the plaint in the previously instituted suit and it can be found out from the copy of the plaint as to what the dispute between the parties is."
Similarly, the hon'ble High Court of Calcutta in Ashok Kumar Yadav v. Noble Designs Pvt. Ltd.; AIR 2006 Cal 237, held that "...for maintaining an application under Section 10 the defendant in the suit concerned need not first file his written statement; the Section 10 application can be taken out, as has been done in the present case, even before filing the written statement."
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