Previously Instituted Suit Can't Be Stayed U/S 10 CPC On Ground That Subsequent Suit On Same Issue Is Pending Between Parties: Kerala High Court

The Kerala High Court has made it clear that when two suits between the same parties on the same issue are pending, it is only the subsequent suit which can be stayed in exercise of powers under Section 10 of the Civil Procedure Code.

“Considering the fact that the suit filed by the respondent being the one filed earlier, it cannot be stayed under Section 10 of CPC” bench of Justice Anu Sivaraman and Justice C Pratheep Kumar clarified.

The petitioner, who is the wife of the respondent, had filed a suit at the sub registrar's office claiming exclusive title over a property which the respondent alleges is half his. The respondent had filed a suit in this regard before the family court.

The petitioner filed for a stay of the respondent's suit under Section 10, arguing that as the subject matter in dispute in both suits are the same, disposal of one of the same will cause prejudice to the petitioner. Since the family court rejected this plea, she moved the High Court.

The respondent-husband contended that he filed the suit in 2018 whereas the petitioner-wife had only instituted the proceedings in 2023. Moreover, his suit case stands posted for final arguments, whereas, in the suit filed by the petitioner, even the service of process was not complete.

The Court said as per Section 10, if the matter in issue in a subsequent suit is also directly and substantially in issue in a previously instituted suit between the same parties, it is the subsequent suit which is to be stayed under Section 10 of CPC and not the earlier one.

Accordingly, the court dismissed the wife's plea for stay.

The plea was moved by Advocate Rajit. 

Counsel for Respondents: Advocates A Parvathi Menon, P Sanjay, Biju Meenattoor, Paul Varghese, Kiran Narayanan, Rahul Raj P, P A Mohammed Aslam, Muhammed Bilal V A, Meera R Menon

Case Citation: 2024 LiveLaw (Ker) 88

Case Title: Radhika v. Unnikrishnan

Case Number: OP (FC) No. 78 of 2024

Click here to read/download the order