SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6127 OF 2008 Joy Frozen Foods Pvt.Ltd. ...Petitioner Versus Vikas Madangopal Tulsian & Ors. ...Respondents ...... Mr.P.G.Lad for Petitioner. Mr.Rajiv Patil, Sr.Counsel with Mr.I.A.Shaikh for Respondents. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. SEPTEMBER 2, 2008. SEPTEMBER 2, 2008. SEPTEMBER 2, 2008. P.C. P.C. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Mr.Shaikh, waives notice for Respondents. 3. As short question is involved, Petition is taken up for final disposal forthwith, by consent. 4. This Writ Petition takes exception to the : 2 : Judgment and Order passed by the Trial Court dated 15th February 2007 below Exhibit 12 in L.E.& C.Suit No.29/40 of 2006. By the said order, the lower Court has allowed the application filed by the Respondents praying for stay of suit filed by the Petitioner till the suit filed by the Respondents being R.A.D. Suit No.419/2003 is finally decided. That order has been passed in exercise of powers under Section 10 of the Code of Civil Procedure, 1908. 5. There is no difficulty in conceding the position that the Rent Court has authority to stay the subsequently filed suit between the same parties in exercise of powers under Section 10 of Code of Civil Procedure. However, the assertion made by the Respondents in the Suit for declaration that they are tenants, will have to be considered as defence in the suit for possession filed by the Petitioner. Whereas, in the suit filed by the Respondents, the assertion of the Petitioner that the Respondents are not in authorised occupation of the suit premises, will have to be considered. In other words, the issues involved in both the suits : 3 : are overlapping and between the same parties pertaining to same subject matter. There is no dispute on this position. If it is so, the Court instead of staying the suit filed by the Petitioner for possession, ought to have proceeded to hear both the suits together and can dispose of the same by common Judgment. On this reasoning, the view taken by the Court below is overturned. 6. In the circumstances, Writ Petition succeeds. The impugned Judgment and Order is set-aside. Instead, the application Exhibit 23 filed by the Respondents is disposed of by moulding the relief, keeping in view the stand taken by the parties that both the cross suits filed by the Petitioner as well as Respondents in respect of the same subject matter can be tried and disposed of together. 7. In view of this order, the Trial Court shall proceed to decide both the suits together in accordance with law. 8. If the parties apply to the Trial Court : 4 : for early hearing of both the suits, that application may be considered by the Trial Court on its own merits. A.M.KHANWILKAR, J.