Case Note & Summary
The petitioner, Mr. Shaikh Hamid Ali Nasir Ali, filed a Writ Petition challenging an order dated 19 January 2013 passed by the learned Judge, City Civil Court, Mumbai, which allowed Notice of Motion No.1685 of 2009 and stayed L.C. Suit No.104 of 2008 under Section 10 of the Code of Civil Procedure, 1908. The respondents were the Municipal Corporation of Greater Mumbai and another. The petitioner contended that the stay was granted prematurely because issues in the suit had not yet been framed. The High Court examined Section 10 CPC, which bars a court from proceeding with the trial of a suit if the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. The court observed that the determination of whether the matter in issue is directly and substantially in issue in a previously instituted suit can only be made after issues are framed in both suits. Since issues in L.C. Suit No.104 of 2008 had not been framed, the City Civil Court ought not to have entertained the Notice of Motion. The High Court allowed the writ petition, quashed the impugned order, and dismissed the Notice of Motion.
Headnote
A) Civil Procedure - Stay of Suit - Section 10 CPC - Prerequisite of Framing Issues - The court held that an application under Section 10 CPC for stay of a suit cannot be entertained unless issues are framed in both suits, as the question whether the matter in issue is directly and substantially in issue in a previously instituted suit can be determined only after issues are framed. The impugned order allowing the Notice of Motion was quashed and set aside. (Paras 4-6)
Issue of Consideration
Whether a Notice of Motion under Section 10 CPC for stay of a suit can be entertained before issues are framed in the suit
Final Decision
Writ Petition allowed. The order dated 19.01.2013 passed by the learned Judge, City Civil Court, Mumbai allowing the Notice of Motion No.1685 of 2009 is quashed and set aside. The Notice of Motion No.1685 of 2009 is dismissed.
Law Points
- Section 10 CPC stay cannot be granted before issues are framed
- matter in issue must be directly and substantially in issue in previously instituted suit
Case Details
2013 LawText (BOM) (08) 130
WRIT PETITION NO. 2639 OF 2013
Mr. S. P. Srivastava (for Petitioner), Mr. Kantilal H. Kanojia (for Respondent No.2)
Mr. Shaikh Hamid Ali Nasir Ali
The Municipal Corporation of Greater Mumbai and Anr
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Nature of Litigation
Writ Petition challenging an order allowing a Notice of Motion under Section 10 CPC for stay of a civil suit
Remedy Sought
Petitioner sought quashing of the order dated 19.01.2013 allowing Notice of Motion No.1685 of 2009 and staying L.C. Suit No.104 of 2008
Filing Reason
The City Civil Court allowed the Notice of Motion for stay under Section 10 CPC even though issues in the suit had not been framed
Previous Decisions
Order dated 19.01.2013 passed by the learned Judge, City Civil Court, Mumbai allowing Notice of Motion No.1685 of 2009 and staying L.C. Suit No.104 of 2008
Issues
Whether a Notice of Motion under Section 10 CPC for stay of a suit can be entertained before issues are framed in the suit
Submissions/Arguments
Petitioner argued that the stay was granted prematurely as issues had not been framed; Respondent's arguments not recorded in judgment
Ratio Decidendi
An application under Section 10 CPC for stay of a suit cannot be entertained unless issues are framed in both suits, as the question whether the matter in issue is directly and substantially in issue in a previously instituted suit can be determined only after issues are framed.
Judgment Excerpts
Perusal of the aforesaid provision shows that the question as to whether the matter in issue is also directly and substantially in issue in a previously instituted suit can be determined only after the issues are framed in both the suits.
Unless such issues are framed, the application under Section 10 of the CPC for stay of the suit cannot be entertained.
Procedural History
L.C. Suit No.104 of 2008 was filed. Notice of Motion No.1685 of 2009 was filed under Section 10 CPC seeking stay of the suit. The City Civil Court allowed the Notice of Motion on 19.01.2013. The petitioner filed Writ Petition No.2639 of 2013 in the Bombay High Court challenging that order.
Acts & Sections
- Code of Civil Procedure, 1908: Section 10
