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 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 the same relief and is aimed to protect the defendant
from multiplicity of proceeding.
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
Citation;AIR2013SC1712, 2013(3)ALLMR444, 2013(4)BomCR298,2013(5)MhLj147, (2013)4SCC333
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 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 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 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.
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 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 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
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 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 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 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 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.
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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