Case: Aspi Jal  Vs. Khushroo Rustom Dadyburjor

The plaintiffs claim to be the owner of the building known assituate at Dadyseth 2nd 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,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) before the Small Causes Court on 6th 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 R.A.E. Suit No.1104/1977 of 2004 (hereinafter to be referred to as the) 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) on 22nd 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 thedefendant filed an application on 29th 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 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 theprayer 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 6th 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. 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 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 bethe trial court came to the following conclusion and while staying the suit proceeded to observe as.. .. 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 Civilplaintiffs 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 as9. … 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 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 6th July,

Reasoning:
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 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.court shall proceed with the trial of anymakes 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 the same relief and is aimed to protect the defendant from multiplicity ofparties 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 whethermatter in issue is also directly and substantially in issue in previously institutedThe key words in Section 10 arematter in issue is directly and substantially in issue in the previously institutedThe 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 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.