Tated K.K, J.:— Heard learned Counsel appearing for the parties.
2. The petitioner/original plaintiff, byway of this petition under Article 227 of the Constitution of India challenges the order dated 6th July, 2011 passed by the trial Court allowing the respondent/original defendant's application under section 10 of Code of Civil Procedure for staying the subsequent suit bearing R.A.E Suit No. 173/256 of 2010. Few facts of the matter are as under:
3. The petitioner/original plaintiff, initially, filed R.A.E Suit No. 1103/1976 of 2004 against the respondent for recovery of tenanted premises in the Small Causes Court on the ground of bona fide requirement for self occupation and acquisition of alternate accommodation by the tenant.
4. Thereafter, the petitioner has filed R.A.E Suit No. 1104/1977 of 2004 against respondents in the Small Causes Court on 6th November, 2004 for eviction on the ground of non-user; and thereafter, the petitioner filed third suit on 22nd February, 2010 bearing R.A.E Suit No. 173/256 of 2010 against the respondent on the ground of non-user. Thereafter, the respondent/original defendant filed an application below Exhibit-23 on 29th September, 2010 under section 10 of the Civil Procedure Code for staying the subsequent Suit bearing R.A.E Suit No. 173/256 of 2010 till the hearing and final disposal of the previous R.A.E Suit No. 1103/1976 of 2004 and R.A.E Suit No. 1104/1977 of 2004. The said application was allowed by the trial Court by oral judgment dated 6th July, 2011. Hence, the present Writ petition.
5. The learned Counsel appearing on behalf of the petitioner states that the trial Court failed to realise that a non-user in the second suit and in the third suit would have to be proved independently as the period of non-user is independent and different, and, therefore, there is no question of staying the subsequent suit. He further submits that the non-user in the two suit is for two different periods (one in 2004 and another in 2010) gives rise to the two separate causes of action, and therefore, the trial Court erred in coming to the conclusion that the subsequent 3rd suit is required to be stayed till the hearing and final disposal of the 2nd suit, i.e, R.A.E Suit No. 1104/1977 of 2004. He submits that section 10 of Code of Civil Procedure cannot be made applicable if the suits are filed for different causes of action though they are against the same party. In support of his contention, he relied upon the judgment of the Apex Court in the case of (Dunlop India Limited v. A.A Rahna)1, reported in 2011 (5) Bom. C.R 744 (S.C) : (2011)5 SCC 778. It is to be noted that the said judgment cited by the learned Counsel appearing on behalf of the petitioner is on the point of section 11 of the Civil Procedure Code, i.e, res judicata. In that case, the Apex Court held that the suits are filed on the same grounds of eviction, but, based on different causes of action, hence the principle of res judicata is not applicable. He, mainly, relied on paragraph 35 of the said judgment, which reads thus:
“(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 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, 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 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 fixed on the front shutter of the building by A.K 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 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 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 the suit premises continuously for six months without any reasonable cause.”
6. On the basis of this submission, he submits that the impugned order passed by the trial Court on 6th July, 2010 is liable to be set aside.
7. On the other hand, the learned Senior Counsel appearing on behalf of the respondent/original defendant, vehemently, opposed the present petition. He submits that the trial Court, rightly, held that the object of the section 10 of Code of Civil Procedure is to prevent the Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. He submits that issue involved in R.A.E Suit No. 1104/1977 of 2004 and R.A.E Suit No. 173/256 of 2010 is similar. In support of his contention, he relied upon the judgment in the matter of (Challapalli Sugars Ltd. v. Swadeshi Sugar Supply Put. Ltd.)2, reported in 1983 A.I.R (Cal.) 199. In that case, the Calcutta High Court held that the matter for determination in the case of an application for stay under section 10 of the Code is not what is the basis of the claim in the two suits, but what is the matter in issue in the two suits. Paragraphs 8 and 11 of the said judgment reads thus:
“8. 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 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, 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 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 fixed on the front shutter of the building by A.K 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 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 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 the suit premises continuously for six months without any reasonable cause.”
“11. 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 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, 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 live for operation. The Appellate Authority 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 fixed on the front shutter of the building by A.K 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 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 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 the suit premises continuously for six months without any reasonable cause.”
8. On the basis of this submission, the learned Senior Counsel appearing on behalf of the respondent/original defendant submits that there is no substance in the present petition and the same is liable to be dismissed.
9. It is noted that four essential conditions for the application under section 10 are:
(i) that the matter in issue in the second suit is also directly and substantially is issue in the first suit
(ii) that the parties in the second suit are the same or the parties under whom they or any of them claimed litigating under the same title.
(iii) that the Court in which the first suit is instituted is competent to grant the reliefs claimed in the subsequent suit.
(iv) the institution of a suit is not barred the trial is an object to avoid conflict of judicial decision by preventing the Courts of concurrent jurisdiction from simultaneously adjudicating upon two or more parallel suits in which the matter in issue is substantially the same.
10. I have gone through the copies of these three plaints annexed to the petition, copy of an application filed by the respondent under section 10 of Code of Civil Procedure and the impugned order passed by the trial Court. 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 non- user, 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, 2011 below Exhibit-23
11. The writ petition is dismissed.
12. Petition dismissed.