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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2908 OF 2013 (Arising out of S.L.P. (C) No. 14808 of 2012)

Aspi Jal & Anr.               … Appellants  VERSUS

Khushroo Rustom Dadyburjor           …Respondent

J U D G M E N T  

The  plaintiffs-petitioners,  aggrieved  by  the  

order dated 9th February, 2012 passed by the Bombay  

High  Court  in  Writ  Petition  No.7653  of  2011,  

affirming the order dated 6th July, 2011 passed by  

the Court of Small Causes at Mumbai, in R.A.E Suit  

No.173/256  of  2010  whereby  it  has  stayed  the  

proceedings in R.A.E. No.173/256 of 2010 till the  

decision in R.A.E. Suit No.1103/1976 of 2004 and

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R.A.E.  Suit  No.1104/1977  of  2004,  have  preferred  

this Special Leave Petition under Article 136 of the  

Constitution of India.

Leave granted.

The  plaintiffs  claim  to  be  the  owner  of  the  

building known as “ Hanoo Manor” situate at Dadyseth  

2nd Cross  Lane  in  Chawpatty  area  of  the  city  of  

Mumbai. According to the plaintiffs, in one of the  

flats  of  the  said  building  admeasuring  1856.75  

sq.ft.  situate on the second floor, defendant’s  

father,  Rustom  Dady  Burjor  (since  deceased)was  

inducted as a tenant on a monthly rent of Rs.355/-.  

The plaintiffs filed a suit for eviction from the  

tenanted premises against the defendant being R.A.E.  

Suit No.1103/1976 of 2004(hereinafter to be referred  

to  as  the  “First  Suit”)  before  the  Small  Causes  

Court on 6th November, 2004 on the ground of bona  

fide requirement for self occupation and acquisition  

of  alternate  accommodation  by  the  defendant.  The  

plaintiffs  thereafter  filed  another  suit  being  

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R.A.E. Suit No.1104/1977 of 2004 (hereinafter to be  

referred to as the “Second Suit”) on the same day in  

the Small Causes Court for eviction of the defendant  

on the ground of non-user for several years before  

the institution of the suit. The plaintiffs during  

the pendency of the aforesaid two suits, chose to  

file  yet  another  suit  bearing  R.A.E.  Suit  No.  

173/256 of 2010 (hereinafter to be referred to as  

the  “Third  Suit”)  on  22nd February,  2010  for  

eviction of the defendant on the ground of non-user  

for a continuous period of not less than six months  

immediately prior to the institution of the suit.    

   The  defendant  filed  an  application  on  29th  

September, 2010 for stay of hearing of the third  

suit till final disposal of the first and second  

suits. The defendant made the aforesaid prayer inter  

alia stating that the parties in all the three suits  

are same as also the issues. It was further averred  

that the subject matter of all these suits are one  

and the same. According to the defendant, since the  

matter in issue in the third suit is substantially  

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in issue in the earlier two suits, the trial of the  

third suit is liable to be stayed until the hearing  

and  final  disposal  of  the  previously  instituted  

first and second suits. The plaintiffs filed reply  

objecting to the defendant’s prayer for stay of the  

third suit inter alia on the ground  that the causes  

of action being different, the application filed by  

the defendant for stay of the third suit is fit to  

be rejected. The Court of Small Causes  by its order  

dated 6th July, 2011, acceded to the prayer of the  

defendant  and  stayed  the  third  suit  till  final  

decision in the earlier two suits. While doing so,  

the trial court observed as follows:

“ 13.  On bare reading of the pleading  in both suits, it clearly appears that  both suits are filed on the same ground  i.e. non user. As, I discussed earlier  one  test  of  the  applicability  of  Section  10  to  a  particular  case  is  whether  on  the  final  decision  being  reached  in  the  previous  suit,  such  decision would operate as res-judicata  in the subsequent suit. 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.  Complete  identity  of  the  subject-matter  is  not  necessary  to  attract the application of S.10 and if  

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a matter directly and substantially in  issue in a previously instituted suit  is also directly and substantially in  issue in a later suit, then under S.10  the later suit shall be stayed.”

Ultimately,  the  trial  court  came  to  the  

following  conclusion  and  while  staying  the  suit  

proceeded to observe as follows:

“15. .. .. But, in the present case,  it is crystal clear from pleading that  matter  in  issue  in  both  suits  is  directly  and  substantially  identical.  Therefore, this is a fit case to invoke  Section  10  of  the  Code  of  Civil  Procedure.”

The plaintiffs assailed the aforesaid order by  

way  of  a  petition  under  Article  227  of  the  

Constitution of India before the Bombay High Court.  

The High Court concurred with the findings and the  

conclusion of the trial court and dismissed the writ  

petition inter alia, observing as follows:

“ 9. … Admittedly, the Petitioner has  filed R.A.E. Suit No.1104/1977 of 2004  and R.A.E. Suit No. 173/256 of 2010 on  the ground of nonuser, though the period  is  different.  But,  after  perusing  the  plaints, it is crystal clear that issue  

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involved in both the suits are similar.  Therefore, in view of Section 10 of the  Civil Procedure Code and judgment in the  matter  of  Challapalli  Sugar  Pvt.  Ltd.  (Supra),  it  is  necessary,  in  the  interest  of  justice,  subsequent  suit  filed  by  the  Petitioner,  i.e.  R.A.E.  Suit No.173/256 of 2010 to be stayed and  the same is done by the Trial Court by  giving detailed reasons. Therefore, I do  not  find  any  substance  in  the  present  Petition  to  interfere  in  the  well  reasoned  order  passed  by  the  Trial  Court dated 6th July, 2011.”

Mr.Shyam  Divan,  Senior  counsel  appearing  on  

behalf of the appellants submits that in the second  

suit, the plaintiffs have sought eviction on the  

ground of non-user of the suit premises for several  

years prior to the filing of the suits but in the  

third suit it has specifically been averred that  

“the defendant and his family has not been in use  

and occupation of the suit premises for a continuous  

period of more than six months immediately prior to  

the  institution  of  this  suit  without  reasonable  

cause”. Thus, according to Mr. Divan, the matter in  

issue in the third suit is non-user of the suit  

premises  prior  to  six  months  from  the  date  of  

institution of the said suit. He points out that the  

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plaintiffs may fail in the earlier two suits by not  

establishing the non-user  of the tenanted premises  

for a period of six months prior to the institution  

of those suits, yet, they can succeed in the third  

suit by proving the non-user  of the suit premises  

by  the  defendants  for  six  months  prior  to  the  

institution  of  that  suit.  According  to  him,  the  

matter  in  issue  in  the  third  suit  being  

substantially different than the first two suits,  

the provisions of Section 10 of the Code of Civil  

Procedure, 1908 (hereinafter to be referred to as  

the “Code”) is not attracted and hence, the trial  

court  erred  in  staying  the  third  suit  till  the  

disposal of the first two suits.

Mr. Harish N. Salve, Senior counsel appearing  

on behalf of the defendant, however, submits that  

the matter in issue in both the suits being non-user  

of the tenanted premises by the defendant, the trial  

court rightly held that the provisions of Section 10  

of the Code is attracted and on that premise, stayed  

the third suit.  

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We have given our thoughtful consideration to  

the rival submissions and we find substance in the  

submission of Mr. Divan.  

Section 10 of the Code  which is relevant for  

the purpose reads as follows:

“  10.  Stay  of  suit.-  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.”

From  a  plain  reading  of  the  aforesaid  

provision,  it  is  evident  that  where  a  suit  is  

instituted in a Court to which provisions of the  

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Code apply,  it shall not proceed with the trial of  

another suit in which the matter in issue is also  

directly and substantially in issue in a previously  

instituted  suit  between  the  same  parties.   For  

application of the provisions of Section 10 of the  

Code, it is further required that the Court in which  

the previous suit is pending is competent to grant  

the relief claimed. The use of negative expression  

in Section 10, i.e. “no court shall proceed with the  

trial of any suit” makes the provision mandatory and  

the  Court  in  which  the  subsequent  suit  has  been  

filed is prohibited from proceeding with the trial  

of that suit if the conditions laid down in Section  

10 of the Code are satisfied. The basic purpose and  

the underlying object of Section 10 of the Code is  

to prevent  the Courts of concurrent jurisdiction  

from  simultaneously  entertaining  and  adjudicating  

upon two parallel litigations in respect of same  

cause of action, same subject matter and the same  

relief.  This is to pin down  the plaintiff to one  

litigation  so  as  to  avoid   the  possibility  of  

contradictory verdicts by two courts in respect of  

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the  same  relief  and  is  aimed  to  protect  the  

defendant from multiplicity of proceeding. The view  

which we have taken  finds support from a decision  

of this Court in National Institute of Mental Health  

& Neuro Sciences vrs. C.Parameshwara,  (2005) 2 SCC  256 in which it has been held as follows:

“ 8.  The object underlying Section 10  is  to  prevent  courts  of  concurrent  jurisdiction from simultaneously trying  two  parallel  suits  in  respect  of  the  same  matter  in  issue.  The  object  underlying  Section 10 is to avoid two  parallel  trials  on  the  same  issue  by  two  courts  and  to  avoid  recording  of  conflicting findings  on issues which  are directly and substantially in issue  in  previously  instituted  suit.  The  language  of Section 10 suggests  that  it is referable to a suit instituted in  the civil court and it cannot apply to  proceedings of other nature instituted  under any other statute. The object of  Section  10  is  to  prevent  courts  of  concurrent  jurisdiction  from  simultaneously  trying  two  parallel  suits  between  the  same  parties  in  respect  of  the  same  matter  in  issue.  The fundamental test to attract Section  10 is, whether on final decision being  reached  in  the  previous  suit,  such  decision would operate as res-judicata  in  the  subsequent  suit.  Section  10  applies only in cases where the whole  of the subject-matter in both the suits  is identical. The key words in Section  10 are “the matter in issue is directly  and  substantially   in  issue”  in  the  

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previous  instituted  suit.   The  words  “directly  and  substantially  in  issue”  are used  in contradistinction to the  words “incidentally or collaterally in  issue”.  Therefore,  Section  10  would  apply only if there is identity of the  matter  in  issue  in  both  the  suits,  meaning thereby, that the whole of the  subject-matter in both the proceedings  is identical.”

In  the  present  case,  the  parties  in  all  the  

three suits are one and the same and the court in  

which the first two suits have been instituted  is  

competent to grant  the relief claimed in the third  

suit.  The  only  question  which  invites  our  

adjudication is as to whether “the matter in issue  

is  also  directly  and  substantially  in  issue   in  

previously  instituted  suits”.  The  key  words  in  

Section 10 are “the matter in issue is directly and  

substantially in issue in the previously instituted  

suit”. The test for applicability of Section 10 of  

the  Code  is  whether  on  a  final  decision  being  

reached  in  the  previously  instituted  suit,  such  

decision  would  operate  as  res-judicata  in  the  

subsequent suit. To put it differently one may ask,  

can  the  plaintiff  get  the  same  relief  in  the  

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subsequent  suit,  if  the  earlier  suit  has  been  

dismissed?  In  our  opinion,  if  the  answer  is  in  

affirmative, the subsequent suit is not fit to be  

stayed.  However,  we  hasten  to  add  then  when  the  

matter in controversy is the same, it is immaterial  

what further relief is claimed in the subsequent  

suit.

As observed earlier, for application of Section  

10 of the Code,  the matter in issue in both the  

suits have to be directly and substantially in issue  

in the previous suit but the question is   what  

“the  matter  in  issue”  exactly  means?  As  in  the  

present  case,  many  of  the  matters  in  issue  are  

common,  including  the  issue  as  to  whether  the  

plaintiffs are entitled to recovery of possession of  

the suit premises, but for application of Section 10  

of the Code, the entire subject-matter  of the two  

suits must be the same.  This provision will not  

apply where few of the matters in issue are common  

and will apply only when the entire subject matter  

in controversy is same. In other words, the matter  

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in issue is not equivalent to any of the questions  

in issue. As stated earlier, the eviction in the  

third suit has been sought on the ground of non-user  

for  six  months  prior  to  the  institution  of  that  

suit. It has also been sought  in the earlier two  

suits on the same ground of non-user  but for a  

different period. Though the ground of eviction in  

the two suits was similar, the same were based on  

different causes. The plaintiffs may or may not be  

able  to  establish  the  ground  of  non-user  in  the  

earlier two suits, but if they establish the ground  

of non-user for a period of six months prior to the  

institution of the third suit that may entitle them  

the decree for eviction. Therefore,  in our opinion,  

the provisions of Section 10 of the Code is not  

attracted  in  the  facts  and  circumstances  of  the  

case. Reference in this connection can be made to a  

decision of this Court in Dunlop India Limited vrs.  

A.A.Rahna & Anr.  (2011) 5 SCC 778 in which it has  been held as follows:

“35. The arguments of Shri Nariman that  the  second  set  of  rent  control  petitions should have been dismissed as  

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barred  by  res  judicata  because  the  issue raised therein was directly and  substantially similar to the one raised  in  the  first  set  of  rent  control  petitions does not merit acceptance for  the  simple  reason  that  while  in  the  first set of petitions, the respondents  had sought eviction on the ground that  the appellant had ceased to occupy the  premises from June 1998, in the second  set  of  petitions,  the  period  of  non- occupation  commenced  from  September  2001 and continued till the filing of  the eviction petitions. That apart, the  evidence produced in the first set of  petitions was not found acceptable by  the  appellate  authority  because  till  2-8-1999, the premises were found kept  open  and  alive  for  operation,  The  appellate authority also found that in  spite of extreme financial crisis, the  management  had  kept   the  business  premises open for operation till 1999.  In the second round, the appellant did  not adduce any evidence worth the name  to  show  that  the  premises  were  kept  open  or  used  from  September  2001  onwards.  The  Rent  Controller  took  cognizance of the notice fixed on the  front  shutter  of  the  building  by  A.K.Agarwal  on  1-10-2001  that  the  Company  is  a  sick  industrial  company  under  the  1985  Act  and  operation  has  been  suspended  with  effect  from  1-10-2001;  that  no  activity  had  been  done in the premises with effect from  1-10-2001 and no evidence was produced  to  show  attendance  of  the  staff,  payment  of  salary  to  the  employees,  payment  of  electricity  bills  from  September, 2001 or that any commercial  transaction  was  done  from  the  suit  premises.  It  is,  thus,  evident  that  even though the ground of eviction in  

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the two sets of petitions was similar,  the  same  were  based  on  different  causes.  Therefore,  the  evidence  produced by the parties in the second  round was rightly treated as sufficient  by  the  Rent  Control  Court  and  the  appellate  authority   for  recording  a  finding that the appellant had ceased  to  occupy  the  suit  premises  continuously for six months without any  reasonable cause.”

     (Underlining ours)

In view of what we have observed earlier, the  

orders passed by the trial court as affirmed by the  

High Court are vulnerable and therefore, cannot be  

allowed to stand.  

Mr. Divan prays that direction may be issued to  

the trial court to hear all the suits together. We  

restrain ourselves from issuing such direction but  

give liberty to the parties if they so choose to  

make such a prayer before the trial court. Needless  

to state that in case such a prayer is made, the  

trial court shall consider the same in accordance  

with law.

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In the result, the appeal is allowed and the  

impugned order of the trial court as affirmed by the  

High Court is set aside but without any order as to  

costs.

                                ………………..............................J.

    [CHANDRAMAULI KR. PRASAD]

                             ……………….............................J.

           [V. GOPALA GOWDA]

NEW DELHI APRIL 05, 2013.

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