ASPI JAL & ANR.versusKHUSHROO RUSTOM DADYBURJOR

                          [2013] 5 S.C.R. 732


A                          ASPI JAL & ANR.
                                     v.
                KHUSHROO RUSTOM DADYBURJOR
                  (Civil Appeal No.2908 of 2013)
                             APRIL 5, 2013
B
       [CHANDRAMAULI KR. PRASAD AND V. GOPALA
                     GOWDA, JJ.]

         Code of Civil Procedure, 1908:
c
          s. 10 - Applicability of - Held: s. 10 is not applicable where
    few of the matters in issue are' common in both the suits - - It
                                           '

    is applicable when the entire subject matter in controversy is
    same - 'Matter in issue' does not mean any of the questions
    in issue - s. 10 is not applicable in the facts and circumstances
0
    of the present case.

        s. 10 - Purpose and object of - Held: The basic purpose
    and underlying object of s. 10 is to avoid the possibility of
    contradictory verdicts by two courts in respect of same relief,
E   and to protect the defendant from multiplicity of proceedings.

         Words and Phrases - 'Matter is issue' - Meaning of, in
    the context of s. 1O CPC.

F      Appellant-Landlord filed suit against the respondent-
  tenant for his eviction on the ground of non-user for a
  continuous period of not less than six months
  immediately prior to institution of the suit. Small Causes
  Court stayed the proceedings of. the suit uls. 10 CPC till
  the disposal of previous two suits between the same
G parties in respect of the same premises on the grounds
  of bona fide requirement, and of non-user for several
  years before the institution of the suit. High Court
  confirmed the order. Hence the present appeal.

H                                  732
      ASPI JAL & ANR. v KHUSHROO RUSTOM                   733
                  DADYBURJOR
     Allowing the appeal, the Court ·                            A
     HELD: 1.1. Where· a suit is instituted in a court to
which provisions of CPC apply, it shall not proceed with
the trial of another suit in which the matter in issue is also
directly and substantially in issue i.n a previously             8
instituted suit between the same parties. For application
of the provisions of Section 10 CPC, 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 CPC, i.e. "no co~rt shall proceed       C
with the trial of any suit" makes 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 CPC are
satisfied. [Para 11] [739-C-E]
                                                                 D
      1.2. In the present case, many of the matters in issue
 are common, including the issue as to whether the
 plaintiffs are entitled to recovery of possession of the suit
 premises, but for application of Section 10 of the Code,
 the entire subject-matter of the two suits must be the          E
 same. This provision will not apply where few of the
·matters in issue are common and will apply only when
 the entire subject matter in controversy is same. The
 matter in issue is not equivalent to any of the questions
 in issue. The eviction in the third suit has been sought        F
 on the ground of non-user for six months prior to the
 institution of that suit. It has also been sought in the
 earlier two suits on the same ground of non-user but for
 a different period. Though the ground of eviction in the
 two suits was similar, the same were based on different         G
 causes. The plaintiffs may or may not be able to establish
 the ground of non-user in the earlier two suits, but if they
 establish the ground of non-user for a period of six
 months prior to the institution of the third suit that may
 entitle them the decree for eviction. Therefore, the            H
    734      SUPREME COURT REPORTS             [2013) 5 S.C.R.


A provisions of Section 10 CPC is not attracted in the facts
  and circu1T1stances of the case. [Para 13) [741-B-F].

          1.3. The test for applicability of Section 10 CPC is
  whether on a final decision being reached in the
8 previously instituted suit, such decision would operate
  as res-judicata in the subsequent suit. If the answer is in
  affirmative, the subsequent suit is not fit to be stayed.
  Thus, when the matter in controversy is the same, it is
  immaterial what further relief is claimed in the subsequent
C suit. [Para 12) [740-G-H; 741-A]
          2. 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
D 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 of
E proceeding. [Para 11) [739-E-F]
        Health & Neuro Sciences vs. C. Parameshwara (2005)
    2 SCC 256;Dunlop India Limited vs. A.A. Rahna and Anr.
    (2011) 5 sec 778: 2011 (5) SCR 1080 - relied on.

F                        Case Law Reference:
          (2005) 2 sec 256       relied on          Para 11
          2011 (5) SCR 1080      relied on           Para 13
G       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    2908 of 2013.

        From the Judgment & Order dated 09.02.2012 of the High
    Court of Judicature at Bombay in Writ Petition No. 7653 of
    2011.
H
     ASPI JAL & ANR. v KHUSHROO RUSTOM                       735
                 DADYBURJOR
    Shyam Divan, Pratap Venugopal, Surekha Raman, Anuj               A
Sharma, Gaurav Nair (for K.J. John & Co.) for the Appellants.

     Harish N. Salve, K.V. Vishavanathan, Ajay Bharsava,
Vanita Bhargava, Priyambada Mishra (for Khaitan & Co.) for
the Respodent.
                                                                     B
    The following Judgment of the Court was delivered

                         JUDGMENT

     1. The plaintiffs-petitioners, aggrieved by the order dated     C
9th February, 2012 passed by the Bombay High Court in Writ
Petition No. 7653 of 2011, affirming the order dated 6th July,
2011 passed by the Court of Small Causes at Mumbai, in R.A.E
Suit No.173/256 of 2010 whereby it has stayed the proceedings
in R.A.E. No.173/256 of 2010 till the decision in R.A.E. Suit
No.1103/1976 of 2004 and R.A. E. Suit No.1104/1977 of 2004,          D
have preferred this Special Leave Petition under Article 136
of the Constitution of India.

    2. Leave granted.
                                                                     E
     3. The plaintiffs claim to be the owner of the building known
as • Hanoo Manor" situate 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, defendant's father,      F
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 "First Suit") before the Small Causes Court       G
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 "Second Suit") on the same day in the Small
Causes Court for eviction of the defendant on the ground of          H
    736       SUPREME COURT REPORTS                    [2013] 5 S.C.R.


A 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 "Third Suif') on 22nd
  February, 2010 for eviction of the defendant on the ground of
B non-user for a continuous period of not less than six months
  immediately prior to the institution of the suit.

         4. The defendant 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
C 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 arid 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
D 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 the defendant's prayer 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
E 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 follows:

                 "13. On bare reading of the pleading in both suits, it
F
          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
G
          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
H         and substantially in issue in· a previously instituted suit is
      ASPI JAL & ANR. v KHUSHROO RUSTOM                        737
                  DADYBURJOR
    also directly and substantially in issue in a later suit, then     A
    under S.10 the later suit shall be stayed."

    5. Ultimately, the trial court came to the following conclusion
and while staying the suit proceeded to observ.e as follows:

         "15 ..... But, in the present case, it is crystal clear       B
    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 Civil Procedure."

      6. The plaintiffs assailed the aforesaid order by way of a       C
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 as follows:

            " 9.... Admittedly, the Petitioner has filed R.A.E. Suit   D
     No.1104/1977 of 2004 and R.A. E. Suit No. 173/256 of
     2010 on the ground of nonuser, though th~ 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             E
     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       F
     do not find any substance in the present Petition to
      interfere in the well reasoned order passed by the Trial
     Court dated 6th July, 2011."

     7. Mr.Shyam Divan, Senior counsel appearing on behalf             G
of the appellants submits that in the second suit, the plaintiffs
have sought eviction on the ground of non-user of the suit
premises for several years prior to the filing of the suits but in
the third suit it has specificaiiy been averred that "the defendant
and his family has not been in use and occupation of the suit          H
          738      SUPREME COURT REPORTS                    [2013) 5 S.C.R.

      A   premises for a continuous period of more than six months
          immediately prior to the institution of this suit without reasonable
          cause". Thus, according to Mr. Divan, the matter in issue in the
          third suit is non-user of the suit premises prior to six months
          from the date of institution of the said suit. He points out that
      B the plaintiffs may fail in the earlier two suits by not establishing
          the non-user of the tenanted premises for a period of six months
        · prior to the institution of those suits, yet, they can succeed in
          the third suit by proving the non-user of the suit premises by
          the defendants for six months prior to the institution of that suit.
      c   According to him, the matter in issue in the third suit being
          substantially different than the first two suits, the provisions of
          Section 10 of the Code of Civil Procedure, 1908 (hereinafter
          to be referred to as the "Code") is not attracted and hence, the
          trial court erred in staying the third suit till the disposal of the
          first two suits.
      0
             8. Mr. Harish N. Salve, Senior counsel appearing on behalf
        of the defendant, however, submits that the matter in issue in
        both the suits being non-user of the tenanted premises by the
        defendant, the trial court rightly held that the provisions of
      E Section 10 of the Code is attracted and on that premise,
        stayed the third suit.

              9. We have given our thoughtful consideration to the rival
          submissions and we find substance in the submission of Mr.
      F   Divan.

              10. Section 10 of the Code which is relevant for the
          purpose reads as follows:

                " 10. Stay of suit.- No Court shall proceed with the trial of
      G         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
      H         having jurisdiction to grant the relief claimed, or in any
      ASPI JAL & ANR. v KHUSHROO RUSTOM                     739
                  DADYBURJOR
    Court beyond the limits of India established or continued      A
    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
                                                                   B
    suit founded on the same cause of action."

      11. 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 C
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 ~he
previous suit is pending is competent to grant the relief claimed.
The use of negative expression in Section 10, i.e. "no court shall o
pro~eed with the trial of any suit" makes 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 E
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
                                                                   F
verdicts by two courts in respect of the same relief and is aimed
to protect the defendant from multiplicity of proceeding. The
view which we have taken finds support from a decision of this
Court in National Institute of Mental Health & Neuro Sciences
vrs. C.Parameshwara, (2005) 2 SCC 256 in which it has been G
held as follows:

    "8. The object underlying Section 10 is to prevent courts
    of concurrent jurisdiction from simultaneously trying two
    parallel suits in respect of the same matter in issue. The
    object underlying Section 10 is to avoid two parallel trials   H
    740       SUPREME COURT REPORTS                   [2013] 5 S.C.R.


A         on the same issue by two courts and to avoid recording
          of conflicting findings on issues which are directly and
          substantially in issue in previously instituted suit. The
          language of Section 10 suggests that it is referable to a
          suit instituted in the civil court and it cannot apply to
B         proceedings of other nature instituted under any other
          statute. The object of Section 10 is to prevent courts of
          concurrent jurisdiction from simultaneously trying two
          parallel suits between the same parties in respect of the.
          same matter in issue. The fundamental test to attract
          Section 10 is, whether on final decision being reached in
c         the previous suit, such decision would operate as res-
          judicata in the subsequent suit. Section 10 applies only in
          cases where the whole of the subject-matter in both the
          suits is identical. The key words in Section 10 are "the
          matter in issue is directly and substantially in issue" in the
D         previous instituted suit. The words "directly and
          substantially in issue" are used in contradistinction to the
          words "incidentally or collaterally in issue". Therefore,
          Section 10 would apply only if there is identity of the matter
           in issue in both the suits, meaning thereby, that the whole
E         of the subject-matter in both the proceedings is identical."

        12. In the present case, the parties 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
F third suit. The only question which invites our adjudication is as
  to whether "the matter in issue is also directly and substantially
  in issue in previously instituted suits". The key words in Section
  10 are "the matter in issue is directly and substantially in issue
  in the previously instituted suit". The test for applicability of
G 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
H our opinion, if the answer is in affirmative, the subsequent suit
      ASPI JAL & ANR. v KHUSHROO RUSTOM                       741
                  DADYBURJOR
is not fit to be stayed. However, we hasten to add then when A
the matter in controversy is the same, it is immaterial whar
further relief is claimed in the subsequent suit.

      13. As observed earlier, for application of Section 10 of
the Code, the matter in issue in both the suits have to be directly   8
and substantially in issue in the previous suit but the question
is what "the matter in issue" exactly means? As in the present
case, many of the matters in issue are common, including the
issue as to whether the plaintiffs are entitled to recovery of
possession of the suit premises, but for application of Section       C
10 of the Code, the entire subject-matter of the two suits must
be the same. This provision will not apply where few of the
matters in issue are common and Will apply only when the
entire subject matter in controversy is same. In other words, the
matter in issue is not equivalent to any of the questions in issue.
As stated earlier, the eviction in the third suit has been sought     D
on the ground of non-user for six months prior to the institution
of that suit. It has also been sought in the earlier two suits on
the same ground of non-user but for a different period. Though
the ground of eviction in the two suits was similar, the same
were based on different causes. The plaintiffs may or may not         E
be able to establish the ground of non-user in the earlier two
suits, but if they establish the ground of non-user for a period
of six months prior to the institution of the third suit that may
entitle them the decree for eviction. Therefore, in our opinion,
the provisions of Section 1O of the Code is not attracted in the      F
facts and circumstances of the case. Reference in this
 connection can be made to a decision of this Court in Dunlop
 India Limited vrs. A.A.Rahna & Anr. (2011)-5 SCC 778 in
which it has been held as follows:
                                                                      G
           "35. The arguments of Shri Nariman that the second
     set of rent control petitions should have been dismissed
     as barred by res judicata because the issue raised therein
     was directly and substantially similar to the one raised in
     the first set of rent control petitions does not merit           H
    742      SUPREME COURT REPORTS                   [2013] 5 S.C.R.

A         acceptance for the simple reason that while in the first set
          of petitions, the respondents had sought eviction on the
          ground that the appellant had ceased to occupy the
          premises from June 1998, in the second set of petitions,
          the period of non-occupation commenced from September
8         2001 and continued till the filing of the eviction petitions.
          That apart, the evidence produced in the first set of
          petitions was not found acceptable by the appellate
          authority because till 2-8-1999, the premises were found
          kept open and alive for operation, The appellate authority
c         also found that in spite of extreme financial crisis, the
          management had kept the business premises open for
          operation till 1999. In the second round, the appellant did
          not adduce any evidence worth the name to show that the
          premises were kept open or used from September 2001
          onwards. The Rent Controller took cognizance of the notice
D
          fixed on the front shutter of the building by AK.Agarwal on
          1-10-2001 that the Company is a sick industrial company
          under the 1985 Act and operation has been suspended
          with effect from 1-10-2001; that no activity had been done
          in the premises with effect from 1-10-2001 and no
E         evidence was produced to show attendance of the staff,
          payment of salary to the employees, payment of electricity
          bills from September, 2001 or that any commercial
          transaction was done from the suit premises. It is. thus.
          evident that even though the ground of eviction in the two
F         sets of petitions was similar. the same were based on
          different causes. Therefore. the evidence produced by the
          parties in the second round was rightly treated as sufficient
          by the Rent Control Court and the appellate authority for
          recording a finding that the appellant had ceased to occupy
G         the suit premises continuously for six months without any
          reasonable cause.·

                                                   (Underlining ours)

          14. In view of what we have observed earlier, the orders
H
      ASPI JAL & ANR. v KHUSHROO RUSTOM                       743
                  DADYBURJOR
passed by the trial court as affirmed by the High Court are           A.
vulnerable and therefore, cannot be allowed to stand.

     15. Mr. Divan prays that direction may be issued to the trial
court to hear all the suits together. We re'strain ourselves from
issuing such direction but give liberty to the parties if they so
choose to make such a prayer before the trial court. Needless
                                                                      8
to state that in case such a prayer is made, the trial court shall
consider the same in accordance with law.

     16. In the result, the appeal is allowed and the impugned
order of the trial court as affirmed by the High Court is set aside   C
but without any order as to costs.

K.K.T.                                           Appeal allowed.