CIVIL APPEAL NO. 2908 OF 2013
ASPI Jal And Another Vs Khushroo Rustom Dadyburjor
DATE OF JUDGMENT:
05 APRIL 2013
HON’BLE JUSTICESCHANDRAMAULI KR. PRASAD and V. GOPALA GOWDA
Appellants:ASPI JAL & ANR
Respondent: KHUSHROO RUSTOM DADYBURJOR
Both the ground and cause of action should be same for applicability of section 10 of CPC.
Code of Civil Procedure
“ 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.
- The plaintiffs-petitioners have preferred the present SLP against the order dated 9 February 2012 passed by Bombay High Court in Writ Petition No.7653 of 2011.
- In theabove-mentioned writ petition, the High Court affirmed the order of the Court of Small Causes whereby it had stayed the proceedings in R.A.E. No.173/256 of 2010 till thedecision in R.A.E. Suit No.1103/1976 of 2004 andR.A.E. Suit No.1104/1977 of 2004.
- Plaintiffs claim to be the owner of a building called “Hanoo Manor” situated in Chowpaty Area of Mumbai.
- According to the plaintiffs, the respondent’s father namely Rustom DadyBurjor was inducted as a tenant in the 2nd floor on a monthly rent of Rs. 335/-.
- A suit for eviction was filed by the plaintiffs against the defendant being R.A.E. Suit No.1103/19s76 of 2004(hereinafter to be referred to as the “First Suit” on 6th November 2004 on the ground of bonafide requirement for self-occupationand acquisition of alternate accommodation by the defendant.
- On the same day, the plaintiffs filed another suit for eviction against the defendants in the Small Causes court on the ground of non-user for several years before the institution of the suit which was registered as R.A.E. Suit No.1104/1977 of 2004 (hereinafter to bereferred to as the “Second Suit”).
- During the pendency of the two above-mentioned suits, plaintiffs filed yet another suit on 22.02.2010 registered as R.A.E. Suit No. 173/256 of 2010 (hereinafter to be referred to as the “Third Suit”) for eviction of the defendant on the ground of non-userfor a continuous period of not less than six months immediately prior to the institution of the suit.
- An application was filed by the defendant on 29th September 2010 seeking stay of hearing of the third suit till final disposal of the first two suits. It was stated that the parties and the subject matter of all three suits are the same. The plaintiffs in their reply objected to the application filed by the defendant on the ground that since the cause of action is different, theapplication filed by the defendant is liable to be rejected. The Small Causes Court allowed the prayer of the defendant and stayed the hearing of the third suit till the final disposal of the first two suits invoking section 10 of Code of Civil Procedure vide its order dated 06.07.2011.
- The plaintiffs challenged the said order before the High Court by invoking Article 227 of the Constitution of India. The High Court dismissed the writ petition and upheld the order of the trial court observing that stay of the proceedings of the third suit was necessary in the interest of justice.
ARGUMENTS ON BEHALF OF APPELLANTS
- Senior advocate Mr. Shyam Diwan appearing on behalf of the appellants submitted that in the second suit, plaintiffs have sought eviction on the ground of non-user of suit premises for ‘several years’ before the institution of the suit. But in the third suit, a different cause of action had been taken up. In the third suit, it has been specifically 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 tothe institution of this suit without reasonable cause”.
- he further submitted that the issue in the third suit is substantially different from the second suit. The plaintiffs may fail in the first two suits by not establishing a non-user of the suit premises for 6 months prior to the institution of the suit but may succeed in the third by proving a non-user for 6 months. Hence, Section 10 of CPC is not applicable to the facts of the present appeal.
ARGUMENTS ON BEHALF OF DEFENDANTS
- Senior Advocate Harish Salve submitted that the matter in both the suits is non-user of the suit premises by the defendant. Hence, the trial court has rightly applied Section 10 of CPC by staying the proceedings of the third suit.
- The court analyzed the scope and extent of applicability of section 10 of CPC. The object of section 10 is to prevent courts of concurrent jurisdiction to adjudicate upon parallel legislations where the issue is directly and substantially similar to each other. It aims to pin down 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 the multiplicity of proceedings.
- Court held that the test for applicability of section 10 is whether the final decision in a previously instituted suitwould operate as res-judicata in the subsequent suit. That means, can plaintiff get the same relief in the subsequent suit if the previous suit is dismissed.
- The court observed that in present case, though the ground taken in both the suits is same, causes of action are different. Hence this case is not fit for applicability of section 10 CPC.
The supreme court relying on its judgment in case of Dunlop India Limited v. A.A.Rahna & Anr. (2011) 5 SCC 778allowed the appeal with the liberty to the plaintiff-appellant to make a prayer before the trial court to hear all the three suits together.
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