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IN THE SUPREME COURT OF INDIA
CHANDRAMAULI KR. PRASAD, V. GOPALA GOWDA, JJ.
Aspi Jal & Anr. – Appellants
VERSUS
Khushroo Rustom Dadyburjor – Respondent
CIVIL APPEAL NO. 2908 OF 2013
(Arising out of S.L.P. (C) No. 14808 of 2012)
Decided On : 05-04-2013
(2005) 2 SCC 256 - Relied upon
(b) Code of Civil Procedure, 1908 - Section 10 - Stay of suit - Relief in three suits are same, i.e., eviction - However all the three suits based on different causes - The entire subject matter in the three suits not same - Section 10 not attracted. (Para 13)
(2011) 5 SCC 778 - Relied upon
Facts of the case:
The Court of Small Causes at Mumbai 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 R.A.E. Suit No.1104/1977 of 2004.
High Court affirmed the order.
Finding of the Court:
Impugned judgments are vulnerable and cannot be sustained.
Result : Appeal allowed.
The legal document discusses the application of Section 10 of the Civil Procedure Code concerning the stay of a subsequent suit when there is a matter directly and substantially in issue in a previously instituted suit between the same parties. The core principle is that if a final decision in the earlier suit would operate as res judicata in the later suit, then the later suit should be stayed to prevent conflicting verdicts and multiplicity of litigation (!) (!) (!) .
In the specific case analyzed, the court examined whether the issues in the third suit were identical or substantially similar to those in the earlier suits. The test involves determining if the entire subject matter of both suits is the same and whether the issues are directly and substantially in issue in both proceedings. The court clarified that even if some issues are common, the provisions of Section 10 apply only if the entire subject matter is identical (!) (!) .
The court found that, despite the similarity in grounds such as non-user of the premises, the causes of action in the suits were different—particularly regarding the period of non-user. The third suit's specific issue was the non-user for a period of six months immediately prior to its institution, which was distinct from the causes of action in the earlier suits. Therefore, the conditions for applying Section 10 were not satisfied, and the stay imposed by the lower courts was not justified (!) (!) .
The decision emphasizes that for Section 10 to be applicable, the entire subject matter of the suits must be the same, and the issues must be directly and substantially in issue in both. When the causes of action differ, even if some issues overlap, the subsequent suit should not be stayed solely on the grounds of similarity in some allegations (!) (!) .
In conclusion, the appellate court set aside the stay order, noting that the earlier suits and the third suit involved different causes of action despite overlapping issues. The court also permitted the parties to request the trial court to hear all suits together, leaving that decision to the discretion of the trial court if such a prayer is made (!) (!) .
JUDGMENT
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 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 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 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 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 cry
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