Page 1 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 9

th

February, 2012 passed by the Bombay

High Court in Writ Petition No.7653 of 2011,

affirming the order dated 6

th

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

Page 2 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

2

nd

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 6

th

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

2

Page 3 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 22

nd

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 29

th

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

3

Page 4 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 6

th

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

4

Page 5 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

5

Page 6 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 6

th

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

6

Page 7 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.

7

Page 8 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

8

Page 9 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

9

Page 10 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

10

Page 11 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

11

Page 12 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

12

Page 13 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

13

Page 14 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

14

Page 15 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.

15

Page 16 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.

16