Aspi Jal v. Khusboo Rustom, (2013) 4 SCC 333

ASPI JAL AND ORS. V. KHUSHROO RUSTOM DADYBURJOR

ISSUE:

Whether on the final decision being reached in the previous suit, such decision would operate as res-judicata in the subsequent suit?

RULE:

The Apex Court concluded that since the causes of action would be distinct in each case as they pertain to different periods of non-user, the applicability of Section 10 of the CPC was turned down.

FACTS:

The Plaintiffs-Petitioners, aggrieved by the order dated 9 th February, 2012 passed by the Bombay High Court in Writ Petition No. 7653 of 2011, affirming the order dated 6 th July, 2011 passed by the Court of Small Causes at Mumbai, in R.A.E.
Suit No. 173/256 of 2010 whereby it has stayed the proceedings in R.A.E. No. 173/256 of 2010 till the decision in R.A.E. Suit No. 1103/1976 of 2004 and R.A.E. Suit No. 1104/1977 of 2004, have preferred this Special Leave Petition under Article 136 of the Constitution of India.
The Plaintiffs claim to be the owner of the building known as ” Hanoo Manor” situate at Dadyseth 2 nd Cross Lane in Chawpatty area of the city of Mumbai. According to the Plaintiffs, in one of the flats of the said building admeasuring 1856.75 sq.ft. situate on the second floor, Defendant’s father, Rustom Dady Burjor (since deceased)was inducted as a tenant on a monthly rent of Rs. 355/-.
The Plaintiffs filed a suit for eviction from the tenanted premises against the Defendant being R.A.E. Suit No. 1103/1976 of 2004(hereinafter to be referred to as the “First Suit”) before the Small Causes Court on 6 th November, 2004 on the ground of bona fide requirement for self occupation and acquisition of alternate accommodation by the Defendant. The Plaintiffs thereafter filed another suit being R.A.E. Suit No. 1104/1977 of 2004 (hereinafter to be referred to as the “Second Suit”) on the same day in the Small Causes Court for eviction of the Defendant on the ground of nonuser for several years before the institution of the suit.
The Plaintiffs during the pendency of the aforesaid two suits, chose to file yet another suit bearing R.A.E. Suit No. 173/256 of 2010 (hereinafter to be referred to as the “Third Suit”) on 22 nd February, 2010 for eviction of the Defendant on the ground of non-user for a continuous period of not less than six months immediately prior to the institution of the suit.

HELD:

The court observed the orders passed by the trial court as affirmed by the High Court are vulnerable and therefore, cannot be allowed to stand.
Mr. Divan prays that direction may be issued to the trial court to hear all the suits together. The court restrains ourselves from issuing such direction but gives liberty to 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 the law.
As 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.