1 (WP 9271 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9271 OF 2010 Madhavlal Narayanlal Pittie ...Petitioner Vs. Mohammed Adil Attarwala and Ors. ...Respondents ----- Mr.A.V. Anturkar with Mrs. D.A. Chhapgar i/b. M/s. D.J. Kamdin and Co. for Petitioner Mr.R.A. Thorat for Respondent No.1 ----- CORAM: V.M. KANADE J. DATED: 5th July, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Petitioner and the learned counsel for the Respondents. 2. The Petitioner is the Original Plaintiff and the Respondents are the Original Defendants. The Petitioner-Original Plaintiff is aggrieved by an order passed by the Trial Court on an application filed by the Respondents under section 10 of the Civil Procedure Code. The Trial Court was pleased to allow the application filed by the Respondent No.1 -Defendant No.6 and granted stay to the suit which was filed by the Plaintiff. Being aggrieved by the said order, the Petitioner has filed his writ petition under Article 227 of the 2 (WP 9271 of 2010) Constitution of India. 3. Brief facts are as under: The Plaintiff filed the suit in the year 1998 against the wife of the original tenant and against the Respondents herein on the ground that the suit premises were illegally sub-let by the tenant in favour of the Respondent No.1 herein. In the said suit, written statement was filed and it was disputed by the Respondent No.1 that they were the heirs of Respondents-tenants and they had acquired the tenancy. An issue was framed by the Trial Court, which is as under: “Does the Plaintiff proves that the Defendant No.1 become the tenant of suit premises after the death of B.N. Banerjee?” The Plaintiff-Petitioner herein challenged this framing of the said issue and finally the order of the Trial Court was confirmed upto the Apex Court. 4. The Plaintiff, thereafter, filed a second suit against the heirs of the Original Tenant Mr.B.N. Banerjee and against the Respondent No.1 herein for eviction on the ground of non-user of the suit premises. In the said suit, written statement was filed by the Defendant No.6 and in 3 (WP 9271 of 2010) paragraph 14 of the written statement, he made the following averment: “This Defendant states that Shri B.N. Benerjee, since deceased, who died on or about 1987, was the original tenant of the suit premises. Smt. Saraswati Banerjee was the widow of the said deceased tenant. She also died in or about 1996. Before her death, she surrendered the tenancy of the suit premises with the consent of the heirs of the deceased original tenant, in December 1993 to the Plaintiff herein as the landlord co- owner and as private Court Receiver of the suit premises......” 5. The Defendant No.6, thereafter, filed an application under section 10 of the Civil Procedure Code in the second suit and it was alleged that the issue which was involved in the first suit, was directly and substantially had arrived in the second suit. In the first suit, the Plaintiff had contended that the Respondent was unlawful sub-tenant and the Defendant Nos.1 to 5 were heirs of the deceased-original tenant. It was, therefore, contended that on the same ground, the Plaintiff could 4 (WP 9271 of 2010) not file the present second suit. It was contended that this issue i.e. Issue No.1 was to be decided in the earlier suit filed by the Plaintiff. It was contended that unless the Plaintiff proves that the Defendant Nos.1 to 5 became the tenants of the suit premises after the death of B.N. Banerjee, the Plaintiff cannot proceed the present suit on the ground of non-user of the said suit since there is no privity of contract between the Defendants and the Plaintiff. The Trial Court while passing the impugned order, accepted the contention of the Respondents herein and granted stay to the second suit under section 10 of the CPC. 6. Shri Anturkar, the learned senior counsel appearing on behalf of the Petitioner submitted that the provisions of section 10 would apply only if after the second suit was filed on the same cause of action and the entire issue in the first suit and the second suit was the same. Secondly, it was submitted that in view of the admission which was given by the Respondent No.1/Defendant No.6 in paragraph 14 of his written statement, he had admitted that the heirs of B.N.Banerjee had become the tenant and, therefore, it was not open for him now to take different stand. Reliance was placed on the judgment of the Apex Court in the case of National 5 (WP 9271 of 2010) Institute of Mental Health & Neuro Sciences vs. C. Parameshwara [AIR 2005 Supreme Court 242]. 7. On the other hand, Shri Thorat, the learned senior counsel appearing on behalf of the Respondents invited my attention first to the title of the suit. He submitted that in the written statement, the Respondents herein had disputed that these heirs had become the tenants. It was submitted that framing of the Issue No.1 was confirmed right upto the Apex Court and the said order was required to be decided first. It was submitted that since it was essential that the Plaintiff had to prove in the first suit that the Defendant No.1 had become the tenant of the premises after the death of B.N. Banerjee, the averment made by the Respondent in paragraph 14 was not relevant. It was submitted that if the said two suits were decided by two different Courts, then it was possible that contradictory decisions were given by the two Courts on the same issue. It was submitted that, therefore, the Trial Court had rightly granted stay to the second suit. He also invited my attention to the observation made by the Apex Court in the case of National Institute of Mental Health & Neuro Sciences (supra) and more particularly in paragraph 10 of the said judgment. 6 (WP 9271 of 2010) 8. After having both the counsel at length, in my view, there is some substance in the submissions made by the learned counsel appearing on behalf of the Petitioner herein. 9. So far as the suits which are filed under section 28 of the Old Rent Act or section 33 of the New Rent Act is concerned, a landlord has a right to file different suits on different grounds of eviction and the said suit can be independently decided. In the present case, the first suit which was filed by the landlord was on the ground of illegal sub-letting and the second suit is filed on the ground of non-user. Both these grounds are independent grounds and, therefore, issue involved though may be overlapping in both the suits in respect of some of the issues, the entire cause of action in both the suits is different and, therefore, in my view, the provisions of section 10 would not apply in such cases. Though Issue No.1 which is framed in the first suit puts a burden on the Plaintiff to prove that the Defendant No.1 i.e. wife of B.N. Banerjee became the tenant after his demise, to some extent it may have some bearing on the second suit. Even then since the second suit is filed on the ground of non-user, in my view, finding given on the first issue in the first suit would not come in the way 7 (WP 9271 of 2010) of the Plaintiff pursuing the second suit. At the most, an application may be made by any of the parties for trying both the suits together or one after another. There cannot be any dispute regarding the ratio of the judgment on which reliance was placed by both the counsel. In my view, the Trial Court, therefore, has clearly overlooked the ratio of the judgment on which reliance was placed by the learned counsel for the Petitioner and, therefore, has committed error of law which is apparent on the face of record. Writ petition is, therefore, allowed in terms of prayer clause (a) and is, accordingly, disposed of. 10. The learned counsel for the Respondents submits that he would like to challenge this order and submits that the said order may be stayed for some time. The Trial Court shall not proceed with the hearing of the second suit for a period of eight weeks. Writ petition is disposed of. (V.M. KANADE J.)