ASPI JAL & ANR. versus KHUSHROO RUSTOM DADYBURJOR

Citation: [2013] 5 S.C.R. 732 · Decided: 05-04-2013 · Supreme Court of India · Bench: C.K. PRASAD, V. GOPALA GOWDA · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
c 
[2013] 5 S.C.R. 732 
ASPI JAL & ANR. 
v. 
KHUSHROO RUSTOM DADYBURJOR 
(Civil Appeal No.2908 of 2013) 
APRIL 5, 2013 
[CHANDRAMAULI KR. PRASAD AND V. GOPALA 
GOWDA, JJ.] 
Code of Civil Procedure, 1908: 
s. 10 - Applicability of - Held: s. 10 is not applicable where 
few of the matters in issue are common in both the suits - It 
' 
' 
-
is applicable when the entire subject matter in controversy is 
same - 'Matter in issue' does not mean any of the questions 
0 
in issue - s. 10 is not applicable in the facts and circumstances 
of the present case. 
s. 10 - Purpose and object of - Held: The basic purpose 
and underlying object of s. 10 is to avoid the possibility of 
contradictory verdicts by two courts in respect of same relief, 
E 
and to protect the defendant from multiplicity of proceedings. 
Words and Phrases - 'Matter is issue' - Meaning of, in 
the context of s. 1 O CPC. 
F 
Appellant-Landlord filed suit against the respondent-
tenant for his eviction on the ground of non-user for a 
continuous period of not less than six months 
immediately prior to institution of the suit. Small Causes 
Court stayed the proceedings of. the suit uls. 10 CPC till 
the disposal of previous two suits between the same 
G parties in respect of the same premises on the grounds 
of bona fide requirement, and of non-user for several 
years before the institution of the suit. High Court 
confirmed the order. Hence the present appeal. 
H 
732 
ASPI JAL & ANR. v KHUSHROO RUSTOM 
DADYBURJOR 
Allowing the appeal, the Court · 
733 
HELD: 1.1. Where· a suit is instituted in a court to 
which provisions of CPC apply, it shall not proceed with 
A 
the trial of another suit in which the matter in issue is also 
directly and substantially in issue i.n a previously 
8 
instituted suit between the same parties. For application 
of the provisions of Section 10 CPC, it is further required 
that the court in which the previous suit is pending is 
competent to grant the relief claimed. The use of negative 
expression in Section 10 CPC, i.e. "no co~rt shall proceed 
C 
with the trial of any suit" makes the provision mandatory 
and the Court in which the subsequent suit has been 
filed is prohibited from proceeding with the trial of that 
suit if the conditions laid down in Section 10 CPC are 
satisfied. [Para 11] [739-C-E] 
1.2. In the present case, many of the matters in issue 
are common, including the issue as to whether the 
plaintiffs are entitled to recovery of possession of the suit 
premises, but for application of Section 10 of the Code, 
D 
the entire subject-matter of the two suits must be the 
E 
same. This provision will not apply where few of the 
·matters in issue are common and will apply only when 
the entire subject matter in controversy is same. The 
matter in issue is not equivalent to any of the questions 
in issue. The eviction in the third suit has been sought 
F 
on the ground of non-user for six months prior to the 
institution of that suit. It has also been sought in the 
earlier two suits on the same ground of non-user but for 
a different period. Though the ground of eviction in the 
two suits was similar, the same were based on different G 
causes. The plaintiffs may or may not be able to establish 
the ground of non-user in the earlier two suits, but if they 
establish the ground of non-user for a period of six 
months prior to the institution of the third suit that may 
entitle them the decree for eviction. Therefore, the 
H 
734 
SUPREME COURT REPORTS 
[2013) 5 S.C.R. 
A provisions of Section 10 CPC is not attracted in the facts 
and circu1T1stances of the case. [Para 13) [741-B-F]. 
1.3. The test for applicability of Section 10 CPC is 
whether on a final decision being reached in the 
8 previously instituted suit, such decision would operate 
as res-judicata in the subsequent suit. If the answer is in 
affirmative, the subsequent suit is not fit to be stayed. 
Thus, when the matter in controversy is the same, it is 
immaterial what further relief is claimed in the subsequent 
C suit. [Para 12) [740-G-H; 741-A] 
2. The basic purpose and the underlying object of 
Section 10 of the Code is to prevent the Courts of 
concurrent jurisdiction from simultaneously entertaining 
and adjudicating upon two parallel litigations in respect 
D of same cause of action, same subject matter and the 
same relief. This is to pin down the plaintiff to one 
litigation so as to avoid the possibility of contradictory 
verdicts by two c

Excerpt shown. Read the full judgment & AI analysis in Lexace.