Civil Procedure Law

Aspi Jal v. Khushroo Rustom Dadyburjor

(2013) 4 SCC 333

Facts

The plaintiffs owned a building in Mumbai in which the defendant’s father had been inducted as a tenant.
In 2004, the plaintiffs filed two eviction suits:
One based upon bona fide personal requirement and acquisition of alternative accommodation;
Another based upon alleged non-user of the premises for the relevant earlier period.
While those suits were pending, the plaintiffs filed a third eviction suit in 2010.
The third suit alleged that the defendant had not used the premises continuously for at least six months immediately before the institution of that suit.
The defendant applied under Section 10 CPC to stay the third suit until the earlier suits were decided.
He argued that:
The parties were the same;
The premises were the same;
Eviction was sought in all proceedings; and
Non-user was an issue in both the second and third suits.
The Small Causes Court stayed the third suit.
The Bombay High Court affirmed the stay.
The landlords appealed to the Supreme Court.

Whether the matter in issue in the third suit was directly and substantially in issue in the earlier suits.
Whether similarity of parties, property, relief and statutory ground is sufficient for Section 10.
Whether non-user during different periods creates separate causes of action.

Section 10 is mandatory where its conditions are satisfied: the subsequent court “shall not proceed” with the trial.
Its purpose is to prevent:
Simultaneous parallel trials;
Conflicting findings; and
Multiplicity concerning the same controversy.
The fundamental test is:
Would the final decision in the earlier suit operate as res judicata in the later suit?
Section 10 requires identity of the whole matter in issue.
It is insufficient that:
Some questions are common;
The parties are identical;
The property is identical; or
The same general statutory ground is used.
The expression “matter in issue” is wider than one isolated question in issue.
The earlier suit must be capable of conclusively determining the entire controversy underlying the later suit.
A subsequent suit based upon a fresh cause of action is not stayed merely because it seeks similar relief.

The parties and tenanted premises were admittedly the same.
Both the second and third suits also referred to non-user.
However, the required factual periods were different.
The second suit concerned whether the premises had remained unused during a period preceding the 2004 filing.
The third suit concerned non-user for six months immediately preceding its institution in February 2010.
The plaintiffs could:
Fail to prove non-user during the earlier period; but
Still prove continuous non-user during the later six-month period.
Therefore, dismissal of the earlier suit would not automatically defeat the third suit.
The third action arose from alleged conduct occurring after the earlier suits had already been instituted.
A later and independent period of statutory default generated a fresh cause of action.
The trial court had treated the similarity of the ground—non-user—as sufficient.
The Supreme Court held that this confused:
A common legal issue; with
Identity of the complete matter in controversy.
Since the earlier decision would not operate as res judicata regarding non-user in 2009–2010, the Section 10 test was not satisfied.
The Court left open the possibility of joint or coordinated trial if procedurally appropriate, but that was different from a mandatory statutory stay.

The Supreme Court allowed the appeal.
It set aside the orders staying the third eviction suit.
Section 10 did not apply because the suits depended upon non-user during different factual periods and therefore arose from different causes of action.
Use this case for: Section 10 requires identity of the entire matter in issue; similar grounds concerning different periods do not justify a stay.