What does Section 10 CPC (res sub judice) require?

If a previously filed case between the same parties involves substantially the same issues, the later suit must be stayed until the earlier case is decided.

Was the appeal against refusal to stay maintainable?

Yes. Under Letters Patent Clause 15, the order had the character of a judgment for appeal purposes.

Why did the Court stay the later proceeding?

Because custody issues in the High Court suit overlapped substantially with the issues before the Family Court, which was already seized of them.

Who normally gets interim custody for a child under five?

Ordinarily the mother, but the father can show that the child’s best interest needs a different arrangement.

Does evidence overlap alone attract Section 10 CPC?

Not by itself. But where the core issues are substantially the same, Section 10 CPC requires a stay to avoid conflicting decisions.

Radhika Konel Parekh v. Konel Parekh (1992)

High Court 1992 Letters Patent Appeal CPC, Family Law 7 min read

PRIMARY_KEYWORDS: Section 10 CPC, res sub judice, stay of suit, custody
SECONDARY_KEYWORDS: Letters Patent appeal, Shah Babulal Khimji, Family Court, guardianship, res judicata

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Quick Summary

This case is a clean guide on Section 10 CPC (res sub judice) in custody-related litigation.

Where an earlier case already covers the same core issues between the same parties, the later suit must be stayed.
An order refusing or dealing with such stay can be appealed under Letters Patent (maintainable).
Custody questions before the Family Court and a parallel High Court proceeding substantially overlapped; hence, the later proceeding was stayed.

Issues

Is the appeal against the order on a Section 10 CPC stay application maintainable under Clause 15 of the Letters Patent?
Should the High Court proceeding be stayed till the Family Court decides the custody issue?

Rules

Section 10 CPC (Res Sub Judice): Later suit must be stayed if the earlier suit, between the same parties, involves substantially the same issues.
Letters Patent Appeal (Clause 15): Orders with the trappings of a judgment are appealable (see Shah Babulal Khimji principle).
Custody in Divorce Proceedings: Family Courts can pass interim and final orders on custody, maintenance, and education of children.

Key: Overlap of issues (not just evidence) triggers Section 10 CPC.

Facts (Timeline)

Timeline graphic for Radhika Konel Parekh case

01 Apr 1990

Parties marry as per Hindu rites.

30 Mar 1991

A male child is born.

1991

Respondent moves High Court for guardianship and related reliefs; seeks interim custody in O.P. No. 694 of 1991.

06 Dec 1991

Appellant files in Family Court, Bombay: divorce, interim custody, maintenance, restraint.

11 Dec 1991

Family Court restrains Respondent from removing the child from Appellant’s custody.

Later

Appellant seeks stay of the High Court interim custody proceeding under Section 10 CPC.

Appeal

Single judge’s view (issues not same) is challenged; present appeal filed by Appellant.

Arguments

Appellant (Radhika)

Family Court already seized of custody; High Court suit raises the same core issues.
To prevent conflicting decisions, Section 10 CPC stay is mandatory.
Appeal is maintainable under Clause 15; order has the character of a judgment.

Respondent (Konel)

Maintainability questioned: order on Section 10 CPC application is not a “judgment”.
High Court proceeding is distinct; at best there is some evidence overlap, not identity of issues.
Claims lack of knowledge of Family Court case at the time.

Judgment

Appeal Maintainable: Following Shah Babulal Khimji v. Jayaben, the order bore the character of a judgment; Letters Patent appeal lies.
Stay Ordered: Issues on custody in the High Court proceeding were substantially the same as in the Family Court case. O.P. No. 694 of 1991 was therefore stayed under Section 10 CPC.
Child’s Welfare: Child under five—ordinarily with the mother; father can rebut by best-interest proof.

Ratio

Section 10 CPC applies when the earlier action between the same parties presents substantially identical issues. In such a case the later suit must be stayed. Orders on such stay can be appealed under Clause 15 of the Letters Patent when they possess the attributes of a judgment.

Why It Matters

Prevents parallel trials and conflicting custody orders.
Clarifies appealability of stay-related orders under Letters Patent.
Centers the child’s best interest while maintaining procedural discipline.

Key Takeaways

Trigger for Stay

Same parties + substantially same issues → stay later suit (S.10 CPC).

Appeal Route

Orders with “judgment” character are appealable under Clause 15 Letters Patent.

Custody Focus

Family Court can pass interim/final custody orders; identity of issues is key, not mere evidence overlap.

Best Interests

Child under five—mother’s custody is usual, subject to welfare proof to the contrary.

Mnemonic + 3-Step Hook

Mnemonic: “Same-Same → Stay”

Match Parties & Issues: Are both suits between the same parties on the same core issues?
Earlier First: If yes, later suit must wait (Section 10 CPC).
Appeal Door: If stay refused/handled wrongly, consider Clause 15 appeal.

IRAC Outline

Issue

Whether the later High Court proceeding on custody should be stayed under Section 10 CPC, and whether the appeal is maintainable under Clause 15.

Rule

Section 10 CPC: stay later suit if earlier suit between same parties involves substantially the same issues. Clause 15 Letters Patent: orders with judgment character are appealable.

Application

Family Court was already examining custody; High Court case raised the same core issue. The impugned order qualified for appeal under Clause 15.

Conclusion

Appeal allowed as maintainable; O.P. No. 694 of 1991 in the High Court was stayed until the Family Court case concluded.

Glossary

Res Sub Judice: Bar on a later suit when an earlier suit on the same issues between the same parties is pending (Section 10 CPC).
Letters Patent Appeal: Intra-court appeal under Clause 15 in Chartered High Courts.
Res Judicata: A decided issue cannot be re-litigated between the same parties.