1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO. 263 OF 2010 Rajkumari Kumar Asrani. .. Petitioner (Org.Defendant No.1 ) Versus Kishandas (Kishore) Bhagwandas Nagpal & Others. .. Respondents (Nos.1 to 4 – Org. Plaintiff Nos.1 to 4 Nos.5 and 6 – Org.Defts Nos.2 and 3.) -- Shri N.V. Walawalkar, Senior Counsel i/by M/s. Rustamji & Ginwala for the Petitioner. -- CORAM : A.S. OKA, J DATE : 22ND JANUARY, 2010. P.C. . Heard Senior Counsel appearing for the Petitioner. 2. The challenge in this Writ Petition under Article 227 of the Constitution of India is to an order dated 15th October, 2009 passed by the learned Judge of the Court of Small Causes by which an application made by the Petitioner under Section 10 of the Code of Civil Procedure, 1908 ( hereinafter referred to as “the said Code” ) has been rejected. With a view to appreciate the submissions made by the learned Senior Counsel appearing for the Petitioner, it will be necessary to refer to the facts of the case. The dispute relates to an immovable property situated in Mumbai. 2 3. On 5th June, 2009, the Petitioner filed a suit in this Court inter alia for a decree for partition and separate possession claiming 7/33rd share in the suit property bearing CTS No.755 together with building known as “Bhagwat Niwas”, situate at Peddar Road, Mumbai – 400 026. On 22nd June, 2009, the first to fourth Respondents filed a suit in the Court of Small Causes, Mumbai against the Petitioner and others. The suit has been filed under Section 41 of the Presidency Small Causes Court Act, 1882 ( hereinafter referred to as “the said Act” ). The said suit relates to Flat No.7B situated in the said Building known as “Bhagwat Niwas”. The allegation made in the said suit is that one Savitridevi was in possession of the said flat in her capacity as a gratuitous licensee and on her demise, the licence has come to an end. 4. The Petitioner has filed a Written Statement contesting the suit filed in the Court of Small Causes, Mumbai. An application was made by the Petitioner in the Court of Small Causes invoking Section 10 of the said Code. The prayer in the said application was for stay of hearing of the said suit till the disposal of the suit filed in this Court by the Petitioner. As pointed out earlier, the suit filed by the Petitioner in this Court is for a partition and separate possession. In short, the contention in the said application was that the property subject matter of both the suits is the same and the issues arising in the suits are 3 substantially the same. The learned trial Judge rejected the application made by the Petitioner on the ground that the parties to the suit are not identical and the reliefs are different. The Court also observed that the Courts where the suits are pending are not of concurrent jurisdiction. 5. Learned Senior Counsel appearing for the Petitioner invited my attention to the material averments in the Plaint filed in both the suits. He pointed out that in the suit filed by the Petitioner in the High Court, he is claiming undivided share in the larger property. He pointed out that there are averments made in the suit filed by the 1st to 5th Respondents that Savitribai was a gratuitous licensee and the present Petitioner is a trespasser. He submitted that the defence of the Petitioner in the suit filed in the Court of Small Causes is that she has undivided share in the property and, therefore, the issue which directly and substantially involved in both the suits is as regards the title of the Petitioner. He submitted that the issue of title claimed by the Petitioner will be decided in the substantive suit filed by the Petitioner in this Court. He submitted that the fact that the parties to both the suits are not identical is totally irrelevant for deciding an application under Section 10 of the said Code. He submitted that the capacity in which the parties are litigating is the same and the issue of title in respect of both the properties is directly and substantially involved in both the suits. He 4 invited my attention to the averments made in the suit filed in the Court of Small Causes. He submitted that the suit proceeds on the footing that the Petitioner is a trespasser. He submitted that on plain reading of the averments in the said suit, it is clear that the Court of Small Causes will not have jurisdiction to entertain the suit and the suit will lie in this Court. 6. Reliance has been placed on the decision of the Apex Court in the case of Ishwardas v. The State of Madhya Pradesh & Others, [AIR 1979 SC 551]. Reliance is also placed on the decision of the Apex Court in the case of P.V. Shetty v. B.S. Giridhar, [AIR 1982 SC 83]. 7. I have carefully considered the submissions. As of today, this Court is not concerned with the merits of the suits filed by the parties. If according to the case of the Petitioner, on a plain reading of the averments made in the Plaint, the Court of Small Causes has no jurisdiction, the Petitioner can always raise that contention. For the purposes of deciding an application under Section 10 of the said Code, at this stage, the Court will have to go by the pleadings as they stand today. 8. Section 10 of the said Code reads thus:- 5 “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].” 9. It is true that the application could not have been rejected on the ground that the parties to the suit are not identical. However, the trial Court has also observed that the Courts are not of concurrent jurisdiction. 10. In the case of Minguel Francis D’Costa v. Sultan Gulamali Karim & Ors., [1999(2) Mh.L.J. 389 ], this Court has held that for applicability of Section 10 of the said Code, the Court where the previous suit is pending must have concurrent jurisdiction as that of the Court where the subsequent suit was pending. This was a case where prior suit was filed by a person claiming to be a tenant in the Small Causes Court for a declaration that he was a tenant. The later suit filed by the Landlord in the City Civil Court for mandatory injunction enjoining the Defendant to remove himself from the premises and for other reliefs. 6 This Court held that subsequently filed suit could not be stayed under Section 10 of the said Code as the City Civil Court had no jurisdiction to grant relief as prayed in the earlier suit. 11. In the present case, the suit filed by the 1st to 4th Respondents is under Section 41 of the said Act. Section 41 of the said Act gives an exclusive jurisdiction to the Court of Small Causes to entertain a suit filed by a licensor claiming possession of the suit premises from a gratuitous licensee and, therefore, the Court in which previously instituted suit is pending has no jurisdiction to grant relief which is claimed in the subsequent suit. That is precisely the observation made by the trial Court that the Courts in which the suits are pending are not of concurrent jurisdiction. 12. In the circumstances, no fault can be found with the impugned order by which prayer for stay of suit under Section 10 of the said Code has been rejected. The Petition is rejected. However, all contentions of the Petitioner on merits of the suits are kept open. JUDGE ash