ASPI JAL JAL BENJON JAL Vs. KHUSHROO RUSTOM

JUDGEMENT

(1.) Heard learned Counsel appearing for the parties. The petitioner/original plaintiff, by way 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:

(2.) 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. 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.

(3.) 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 Vs. A.A. Rahna and another, 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: