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2013 (4) TMI 888 - SUPREME COURTExtract: .......the parties if they so choose to make such a prayer before the trial court. Needless to state that in case such a prayer is made, the trial court shall consider the same in accordance with law. In the result, the appeal is allowed and the impugned order of the trial court as affirmed by the High Court is set aside but without any order as to costs.
Issues Involved:
1. Applicability of Section 10 of the Code of Civil Procedure, 1908. 2. Whether the matter in issue in the third suit is directly and substantially in issue in the previously instituted suits. 3. Whether the trial court erred in staying the third suit till the disposal of the first two suits. Summary: 1. Applicability of Section 10 of the Code of Civil Procedure, 1908: The plaintiffs filed a Special Leave Petition u/s 136 of the Constitution of India against the order of the Bombay High Court, which affirmed the stay of proceedings in the third suit (R.A.E. Suit No. 173/256 of 2010) until the decision in the first two suits (R.A.E. Suit No. 1103/1976 of 2004 and R.A.E. Suit No. 1104/1977 of 2004). The trial court had stayed the third suit based on Section 10 of the Code of Civil Procedure, 1908, which mandates that no court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. 2. Whether the matter in issue in the third suit is directly and substantially in issue in the previously instituted suits: The trial court observed that both the second and third suits were filed on the ground of non-user, albeit for different periods. The High Court concurred, stating that the issues involved in both suits were similar, thus justifying the stay u/s 10 of the Code. However, the Supreme Court found substance in the plaintiffs' argument that the matter in issue in the third suit was non-user for a continuous period of six months immediately prior to the institution of the suit, which was different from the non-user period cited in the earlier suits. The Supreme Court emphasized that for Section 10 to apply, the entire subject matter in controversy must be the same, not just a few common issues. 3. Whether the trial court erred in staying the third suit till the disposal of the first two suits: The Supreme Court held that the provisions of Section 10 were not attracted in this case because the ground of eviction in the third suit, though similar, was based on a different cause. The plaintiffs could potentially succeed in the third suit even if they failed in the earlier suits. The Court referenced its decision in Dunlop India Limited vrs. A.A.Rahna & Anr., where it was held that similar grounds based on different causes do not attract Section 10. Consequently, the Supreme Court set aside the orders of the trial court and the High Court, allowing the appeal without any order as to costs. Conclusion: The Supreme Court allowed the appeal, setting aside the orders of the trial court and the High Court, and clarified that Section 10 of the Code of Civil Procedure, 1908, was not applicable in this case due to the different periods of non-user cited in the suits. The Court also provided liberty to the parties to request the trial court to hear all suits together if they so choose.
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