MINGUEL FRANCIS DCOSTA Vs. SULTAN GULAMALI KARIM CHHATRIWALA

JUDGEMENT

(1.) ON 12-10-1996 the petitioner filed a suit as Short Causes Suit No. 5671 of 1996 in the City Civil Court, Bombay against respondent No. 1 for injunction restraining him from disturbing the petitionerss possession on premises bearing No. 7/c, Ground Floor, Sunbeam Chambers, New Marine Lines, Mumbai 400 020. The petitioner claims his tenancy over this premises. While hearing interim application, the learned Judge found that the dispute is really between the landlord and tenant and the City Civil Court has no jurisdiction. Therefore, on 15th October, 1996 the said suit was withdrawn with notice to respondent No. 1. On the same day, the petitioner filed Rent Act Declaration Suit No. 1794 of 1996 in the Court of Small Causes at Bombay against the respondent No. 1 for declaration that he was tenant of the respondent No. 1 in respect of the aforesaid premises and also for the injunction restraining defendant No. 1 from dispossessing the petitioner from the suit premises without due process of law. In the meantime, respondent No. 1 also filed Suit No. 5852 of 1996 for mandatory injunction to direct the petitioner to remove himself from the suit premises and for other reliefs. Petitioner also took out Notice of Motion No. 140 of 1997 wherein he has contended that Suit No. 5852 of 1996 should be stayed under section 10 of the Code of Civil Procedure till his Suit No. 1794 of 1996 in the Court of Small Causes at Bombay is finally disposed of. By an order dated 7th April, 1997, the said application was dismissed by the City Civil Court as the requirement for invoking section 10 are not satisfied in the present case. In the said order of the City Civil Court Bombay is being sought to be revised here.

(2.) THE learned Counsel for the petitioner Mr. Anturkar submits that the point that has to be decided in the suit filed by him before the Small Causes Court as Suit No. 1794 of 1996 and in the Suit No. 5852 of 1996 on the file of City Civil Court filed by respondent No. 1 are one and the same i. e. whether the petitioner is a tenant of the respondent No. 1 and when that common question is to be decided in these suits, though pending before different courts, Suit No. 5852 of 1996 filed by respondent No. 1 has to be stayed taking into account the legislative intention in enacting section 10. In order to appreciate the argument of the learned Counsel for the petitioner, it is necessary to refer section 10 of the Code of Civil Procedure, which reads as follows :

(3.) THE learned Counsel for the petitioner Mr. Anrurkar tried to contend before me that the Suit No. 1794 of 1996 filed by the petitioner is the earlier suit and Suit No. 5852 of 1996 was a subsequent suit between the same parties. The matter in issue is also directly and substantially the same in subsequent suit. Then by the virtue of former part of the section, subsequent Suit No. 5852 of 1996 shall be stayed. He contended that if the facts of the case satisfy the first part of the section, the later part of the section namely "or between the parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or in any other Court in (India) having jurisdiction to grant the relief claimed, or in any Court beyond the limits of (India) established or continued by (the Central Government) and having like jurisdiction, or before the Supreme Court" will have no application. In other words, if it is found that there is previously instituted suit between the same parties and the issues are the same to be directly and substantially same in both the suits, then it is immaterial whether the Court where the subsequent suit is filed has got jurisdiction to grant reliefs claimed or not.