Chandramauli Kr. Prasad, J.

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 RA.E. Suit No. 1103/1976 of 2004 and R.A.E. Suit No. 1104/1977 of 2004 have preferred this Special Leave Petition under Article 136 of the Constitution of India.

2. Leave granted.

3. 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 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.

4. 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 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 resjudicata 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 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."

5. Ultimately, the trial Court came to the following conclusion and while staying the suit proceeded to observe as follows :