AIR 1971 CALCUTTA 345

Calcutta High Court

Hon'ble Judge(s): Ramendra Mohan Datta , J

(A) Civil P.C. (5 of 1908) , S.10— Application thereunder is maintainable at any stage of a proceeding and it must necessarily be granted irrespective of laches if conditions under the section are satisfied. (Para 7) (B) Civil P.C. (5 of 1908) , S.10— Suits can be stayed under it on the ground of constructive res judicata. AIR 1935 Cal 1 Followed.AIR 1923 Cal 716 and AIR 1933 Cal 887 and AIR 1954 Pat 314 and AIR 1957 Cal 727 and AIR 1962 SC 527, Distinguished.(Paras1112and15) (Para 11 12 15) The test in an application under the section is whether the matter in the later suit will be res judicata if the earlier suit is taken to have been decreed as prayed in the plaint of that later suit. It will be immaterial if no written statement has been made in that earlier suit. Thus when invalidity of an agreement is in issue in the later suit and decree in the earlier suit can possibly be only on the validity of that agreement if that invalidity has not been pleaded in that earlier suit it will be hit by constructive res judicata. As such the later suit can be stayed under the section.(Para 11 12 15) ....