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.
The words “proceed with the trial“ have been substituted for the word “try”. The words “except where a suit has been stayed under section 20” which occurred at the commencement of the corresponding section of the Code of 1882, the words “for the same relief” which occurred after the words “previously instituted suit,” and the words “whether superior or inferior” which occurred after the words “any other Court” have been omitted. The words “litigating under the same title ” are new.
The present section provides that where a suit is instituted in a Court to which the Code applies, the Court shall not proceed with the trial of the suit, if
The object of the section is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue.
B, residing in Calcutta, has an agent A at Calicut employed to sell his goods there. A sues B in Calicut claiming a balance due upon an account in respect of dealings between him and B. During the pendency of tho suit in the Calicut Court, B institutes a suit against A in Calcutta for an account and for damages caused by A’s alleged negligence. Here the matter in issue in B’s suit is directly and substantially in issue in A's suit ; further both the suits are between the same parties; therefore, if the Court at Calicut is a Court of jurisdiction competent to grant the relief claimed in B's suit, the Calcutta Court must not proceed with the trial of B’s suit, and the suit in the Calicut Court, being the one instituted prior in point of time, should alone be proceeded with. But if A was B's agent at Pondicherry instead of at Calicut, and the suit was brought by him in the Pondicherry Court, the Calcutta Court would not be precluded from proceeding with the trial of B's suit, the Pondicherry Court being a “foreign” Court.1) The provisions of this section apply though the relief claimed in the second suit may not be the same as that claimed in the first suit.
The corresponding section of the Code of 1882 (section. 12) contained the words “for the same relief ” after the words “previously instituted suit.” Hence it was necessary to the application of the section not only that the matter in issue in the second suit should also be directly and substantially in issue in the first suit, but that the second suit must be for the same relief as that claimed in the first. Those words have been omitted in the present section. The effect of the omission is to render the provisions of this section applicable, even though the relief claimed in the subsequent suit may not be the same as that claimed in the first suit. What is now essential is the identity of the matter directly and substantially in issue. The identity of the relief claimed is immaterial. It has been held by the High Court of Patna , following a decision of the Calcutta High Court, that this section does not apply to a claim relating to a period subsequent to the claim in the former suit.
In the Patna case A sued the Maharaja of Dumraon for arrears of pension from 1908 to 1911. The Maharaja denied his liability to pay the pension. The suit was dismissed by the trial Court, but was decreed by the High Court. The Maharaja preferred an appeal to the King in Council. Pending the appeal A instituted another suit against the Maharaja claiming arrears of pension from 1912 to 1918. The Maharaja applied under the present section for a stay of the trial of the second suit pending the decision by the Privy Council of the first suit. It was held that the section did not apply and that the second suit should not be stayed. The ground of the decision was that in order to attract the operation of the present section it was necessary that every matter in dispute in the second suit should be directly and substantially in issue in the first suit, but that condition was not satisfied in the case before the Court as the pention claimed in the second suit was for a period subsequent to that claimed in the first suit.
This decision, it is submitted, is not correct. There were only two “matters in issue” in the first suit, namely,
These and only these two matters would also be in issue in the second suit. If the Privy Council found in the first suit that B was entitled to the pension and that the amount of the pension was Rs. 5,000 per annum, those findings would be sufficient to dispose of also the second suit. No doubt, the reliefs claimed in the two suits were different (the pension claimed being for different periods) and this would be a ground under the old section for refusing to stay the trial of the second suit.
But the test under the present section is not the identity of the relief claimed, but the identity of the matter or matters in issue, and the matters in issue in both the suits were, it is submitted, the same.
Note that it is the pendency of the previously instituted suit that constitute a bar to the trial of the subsequent suit. The word “suit” includes “ appeal“. It seems that it does not also include applications under section 47.
These words clearly indicate the action to be taken by the Court under this section. The second suit is not to be dismissed as barred it is only the trial of the suit that is not to be proceeded with. That may render the institution of the subsequent suit unnecessary in a large majority of cases ; but the section is no bar to the institution of such suit. And there are cases in which it is necessary for party to institute a regular suit to establish a right claimed by him, and failure to institute the suit within the period prescribed by the law of limitation precludes the part from asserting the right in any other suit or proceeding. Suits referred to in O.21, r.632) are of this character. This section does not dispense with th necessity of instituting such suits.