Whether a previously instituted suit can be stayed under Section 10 CPC?

Whether a previously instituted suit can be stayed under Section 10 CPC? This is a very common question in Probate case and Partition suit. In cases when Probate cases are pending and the opposite party files a partition suit a common question is should the Partition suit be stayed.

Whether a previously instituted suit can be stayed under Section 10 CPC?

Firstly we need to understand what section 10 of CPC implies. The Hon’ble High Court of Delhi in n AMITA VASHISHT vs TARUN VEDI CM(M) 980/2022 in para 10 of its order dated 16.09.2022 has recorded on Para 10 of its order states : Paras 9 to 13 of the impugned order, which contain the reasons for rejection of the petitioner’s application, may be reproduced as under ―9. From perusal of the aforesaid section, it is hereby clear that the following essential conditions for the application of the Section 10 of the CPC are necessary:-

(a) there must be two pending suits on same matter,

(b) these must be between the same parties or parties under whom they or any of them claim to litigate under the same title, © the matter in issue must be directly and substantially same in both the suits,

(d) the suits must be pending before the competent Court or Courts,

(e) the suit which shall be stayed is the subsequently instituted suit,

Whether Section 10 CPC applies in Partition suit?

The Hon’ble Supreme Court in Nirmala Devi vs. Arun Kumar Gupta and Others (2005) 12 SCC 505 it has been observed that the suit for partition can be clubbed together with a Testamentary proceeding.

In the case of Chiranjilal Shrilal Goenka vs. Jasjit Singh and Others (1993) 2 SCC 507 the primacy of the Probate Court on the question of validity of a Will.

The Delhi High Court, in the case of Praveer Chandra vs. Aprajita & Others (2019 SCC Online Delhi 10820) has held that a partition suit and Probate Proceeding could proceed simultaneously.

Conclusion Whether a previously instituted suit can be stayed under Section 10 of CPC?

Yes, if we see the Judgments relied upon before the Hon’ble Supreme Court and various High Courts, sometimes both have been clubbed together to be decided together although the decision in Probate case will depend on the success of the Partition suit.

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Originally Article Published at:- t.ly/6q9du

Yes, if we see the Judgments relied upon before the Hon’ble Supreme Court and various High Courts.