Bombay High Court
Neera K Handa And Anr vs Morarji Hariram Deleted Since Decd Thru ... on 4 September, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:37153
Digitally signed
SANTOSH by SANTOSH
SUBHASH
SUBHASH KULKARNI -WP15001-2022.DOC
KULKARNI Date: 2025.09.04
20:01:27 +0530
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 15001 OF 2022
1. Neera K. Handa
2. (Arun K. Handa) deleted since deceased
2(a) Nutan Arun Handa
2(b) Shruti Arun Handa
2(c) Harshal Arun Handa
2(d) Harshrani K Handa (deleted since
deceased) ...Petitioners
Versus
1. (Morarji Hariram) Deleted since
deceased
1(a) Nirmalaben Morarji Thakkar
1(b) Arun Morarji Ruparel @ Thakkar
1(c) Tarun Morarji Ruparel @ Thakkar
2. (Shailesh Thakkar) Deleted since
deceased
2(a) Neeta Shailesh Thakkar
2(b) Nishant Shailesh Thakkar
3. Atul Thakkar ...Respondents
Mr. Prashant Karande, a/w Sudam Patil, i/b Ajit Hodage, for
the Petitioners.
Mr. Sanjay Jain, a/w Divyang Shukla, i/b LJ Law, for
Respondent Nos.1(a) to 1(c).
CORAM: N. J. JAMADAR, J.
RESERVED ON: 24th JUNE, 2025
PRONOUNCED ON: 4th SEPTEMBER, 2025
JUDGMENT:
-
1. Rule. Rule made returnable forthwith and, with the
consent of the learned Counsel for the parties, heard finally.
2. This petition under Article 227 of the Constitution of India,
assails the legality, propriety, and correctness of an order
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staying the trial in RAD Suit No.1227 of 2008 under Section 10
of the Code of Civil Procedure 1908, ("the code") on account of
the decree passed in a previous suit, i.e. Suit No.7485 of 2005
by the City Civil Court.
3. The petitioners instituted RAD Suit No.1227 of 2008
asserting that, their father was the tenant in respect of Room
No.23, Kutchi House, Matunga, Mumbai. One Mr. U. B. Rao
was the tenant of adjoining Room No.22 ("the suite premises").
Mr. U. B. Rao was a bachelor and passed away on 13 th May,
1994. During the lifetime of Mr. U. B. Rao, the plaintiffs, had
been in the occupation of the suit premises as members of U. B.
Rao's family. Mr. U. B. Rao had executed his last Will and
testament dated 1st January, 1993, wherein it was mentioned
that he treated plaintiff No.1 as his daughter. Since the
plaintiffs had been residing with Mr. U. B. Rao as his family
members, at the time of his death, the plaintiffs were entitled to
inherit the tenancy rights and had, thus, become the tenants of
the respondents - defendants.
4. The respondents resisted the suit by filing written
statement. It was contended that RAD Suit No.1227 of 2008
was filed to give a counterblast to Eviction Suit No.717 of 2006
filed by the respondents against the plaintiffs before the High
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Court on the ground that the plaintiffs were trespassers, and
after the death of Mr. U. B. Rao they had unlawfully occupied
the suit premises. Mr. U. B. Rao expired without leaving any
heir. The plaintiffs had no concern with Mr. U. B. Rao and they
were not the members of Mr. U. B. Rao's family.
5. Whilst RAD Suit No.1227 of 2008 was subjudice, Suit
No.7485 of 2015 (Original High Court Suit No.717 of 2005) came
to be decreed by the City Civil Court and the plaintiffs were
directed to hand over vacant and peaceful possession of the suit
premises, and also pay the compensation for unlawful
occupation at the rate of Rs.2500/- per month from the date of
the suit till handing over the possession of the suit premises.
6. The petitioners preferred FA/1148/2018. By an order dated
27th August, 2019, the execution and operation of the judgment
and decree dated 7th October, 2017 in Suit No.7485 of 2005,
came to be stayed till the disposal of the appeal subject to the
petitioners - appellants depositing the sum of Rs.12,000/- per
month or till the final disposal of RAD Suit N0.1227 of 2008
pending before the Court of Small Causes, whichever is earlier.
7. The defendant No.1(c) took out an application (Exhibit-74)
for stay of RAD Suit No.1227 of 2008 asserting that the issues
that directly and substantially arose for determination in the
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previous suit i.e. Suit No.7485 of 2005 also arise for
determination in the instant suit. Thus, to avoid multiplicity of
proceedings and conflicting findings, it was necessary to stay
RAD Suit No.1227 of 2008.
8. The petitioners resisted the application by filing reply. It
was, inter alia, contended that the Court of Small Causes has
exclusive jurisdiction to decide whether the plaintiffs were the
tenants in respect of the suit premises and, conversely, the City
Civil Court had no jurisdiction to decide the said issue and,
thus, could not have decided whether the petitioners were the
deemed tenants under the provisions of section 5 (11)(c)(i) of the
Bombay Rents, Hotel and Lodging House Rates Control Act,
1947 ("the Rent Act, 1947"). Therefore, the instant suit was not
required to be stayed by invoking the provisions contained in
Section 10 of the Code.
9. The learned Judge, Court of Small Causes, noted that the
plaintiffs - defendants in the previous suit, had taken the
defense before the City Civil Court that they had become
deemed tenant in respect of the suit premises. A specific issue
(i.e. issue No.(d)) was framed by the City Civil Court and it was
answered in the negative. The legality and correctness of
the said finding, which turns upon the question as to whether
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the City Civil Court had the jurisdiction to record such finding,
awaits determination in the first appel. Therefore, at that stage,
it could not be said that the judgment and decree passed by the
City Civil Court was sans jurisdiction, and, thus, a nullity.
Observing thus, the learned Judge held that the decision of the
City Civil Court in regard to the claim of tenancy by the
plaintiffs, in the instant suit, would operate as res judicata.
There was a possibility of conflicting decisions if the Court of
Small Causes were to proceed with the adjudication of the
instant suit. As the parties in both the suits were same, the
subject matter was also same and the matter in issue in both
the suits was directly and substantially the same, the instant
suit was required to be stayed.
10. Being aggrieved, the petitioners have preferred this
petition.
11. I have heard Mr. Prashant Karande, the learned Counsel
for the petitioners, and Mr. Sanjay Jain, the learned Counsel for
the respondent Nos.1(a) to 1(c), at some length. I have also
perused the material on record including the pleadings in the
instant suit, and the judgment of the City Civil Court in Suit
12. Basic facts are rather uncontroverted. The respondents
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Nos.1(a) to 1(c) had instituted the suit before the High Court for
eviction of the petitioners on the ground that they were
trespassers and in unlawful occupation of the suit premises,
first in point of time. The said suit thus qualifies as a previous
suit. The petitioners, in turn, instituted RAD Suit before the
Court of Small Causes, and sought a declaration that they are
the tenants of respondent Nos.1(a) to 1(c) in respect of the suit
premises, and the consequential reliefs. The defence of
defendant Nos.1(a) to 1(c) as manifested in the written
statement, was in line with their claim in Suit No.7485 of 2005,
which came to be decided by the City Civil Court by a judgment
and order dated 7th October, 2017 while the instant suit was still
subjudice.
13. In Suit No.7485 of 2005, the City Civil Court had framed,
inter alia, the following issues:
"(a) Whether plaintiff proves that Defendants Nos.1 to 3 have
no right, title or interest in the suit room no.22 and are
trespassers and therefore entitled to vacant peaceful possession
of the suit room?
(d) Whether defendant Nos.1 to 3 prove that defendant No.1
is the deemed tenant under the provisions of Section 5(11)(c)(i)
of the then Bombay Rent Act?
(e) Whether defendant Nos.1 to 3 prove that this Court has
no jurisdiction to try and entertain the present suit?"
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14. Issue Nos.(d) and (e) were decided in the negative and,
resultantly, issue No.(a) was decided in the affirmative.
15. The principle challenge of the petitioners is that the City
Civil Court lacked subject matter jurisdiction to decide whether
the petitioner No.1 was the deemed tenant in respect of the suit
premises. In view of the provisions contained in
Section 33 of the Maharashtra Rent Act, 1999, the Court of
Small Causes has exclusive jurisdiction to entertain and try a
suit or proceeding between a landlord or tenant relating to
recovery of rent or possession of any premises. Therefore, the
learned Judge, Court of Small Causes, was not justified in
staying the instant suit in which the petitioners were seeking
declaration of tenancy.
16. Mr. Karande would urge that, the learned Judge, Court of
Small Causes did not properly appreciate the the nature of the
exclusive jurisdiction conferred on the Court of Small Causes.
The learned Judge was in error in holding that the findings of
the City Civil Court on the aspect of the deemed tenancy of the
petitioners would operate as res judicata. It was submitted that
to operate as a res judicata the Court which has delivered the
judgment in the former suit must be a Court of a competent
jurisdiction. This aspect, according to Mr. Karande, was
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completely lost sight of by the learned Judge.
17. In opposition to this, Mr. Sanjay Jain, the learned Counsel
for respondent Nos.1(a) to 1(c) supported the impugned order.
Taking the Court through the claim of the plaintiffs in the
instant suit and the findings on the issues recorded by the City
Civil Court, Mr. Jain would urge that the instant suit is but a
verbatim reproduction of the defence of the petitioners in the
previous suit. The City Civil Court, which has undoubted
jurisdiction to determine whether a person is a trespasser, has
rendered categorical findings that the petitioners were the
trespassers. Therefore, the continuation of the trial in the
instant suit before the Court of Small Causes would be in teeth
of the peremptory language of Section 10 of the Code.
Resultantly, the learned Judge, Court of Small Causes, was well
within her rights in staying the trial in the instant suit as there
was an imminent risk of conflicting decisions, apart from
aviodable multiplicity of the proceedings.
18. While determining this petition, this Court would refrain
from expressing any views on the merits of the rival claims as
the questions are subjudice before this Court in FA/1148/2018
and may warrant determination in the instant suit. The Court
would, therefore, confine its consideration to assess the legality,
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correctness and propriety of the impugned order on the
touchstone of the parameters which justify invocation of Section
10 of the Code.
19. Section 10 of the Code reads as under:
"Section 10. Stay of suit.--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, or between parties under whom they or any of
them claim litigating under the same title where such suit is
pending in the same or any other Court in [India] have
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].
Explanation.--The pendency of a suit in a foreign Court does
not preclude the Courts in 1[India] from trying a suit founded
on the same cause of action."
20. As is evident, section 10 begins with a negative expression,
emphasizing the peremptory nature of the interdict. It implies
that where a suit is instituted in a Court to which the provisions
of the Code apply, such Court shall not proceed with the trial of
such suit, if the matter in issue is also directly and substantially
in issue in a previously instituted suit between the same parties.
For the applicability of the provisions of Section 10 the Code, it
must be demonstrated that the Court in which the previous suit
is pending, is competent to grant the relief. The primary object
of Section 10 is to prevent the Courts of concurrent jurisdiction
from simultaneously entertaining and adjudicating upon two
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parallel litigations in respect of the same cause of action, same
subject matter and the same relief. The section thus aims to
obviate the possibility of conflicting decisions by two Courts in
respect of the same subject matter.
21. In the case of National Institute of Mental Health and
Neuro Sciences vs. C. Parameshwara1, the Supreme Court,
expounded the underlying object of section 10 and the
fundamental test to attract the said provision. The observations
in paragraph 8 are instructive and hence extracted below.
"8. The object underlying Section 10 is to prevent Courts of
concurrent jurisdiction from simultaneously trying two parallel
suits in respect of the -same matter in issue. The object
underlying Section 10 is to avoid two parallel trials on the same
issue by two Courts and to avoid recording of conflicting
findings on issues which are directly and substantially in issue
in previously instituted suit. The language of Section 10
suggests that it is referable to a suit instituted in the civil Court
and it cannot apply to proceedings of other nature instituted
under any other statute. The object of Section 10 is to prevent
Courts of concurrent jurisdiction from simultaneously trying
two parallel suits between the same parties in respect of the
same matter in issue. The fundamental test to attract Section
10 is, whether on final decision being reached in the previous
suit, such decision would operate as res-judicata in the
subsequent suit. Section 10 applies only in cases where the
whole of the subject matter in both the suits is identical. The
key words in Section 10 are "the matter in issue is directly and
substantially in issue" in the previous instituted suit. The words
"directly and substantially in issue" are used in contra-
distinction to the words "incidentally or collaterally in issue".
Therefore, Section 10 would apply only if there is identity of the
matter in issue in both the suits, meaning thereby, that the
whole of subject matter in both the proceedings is identical."
(emphasis supplied)
1 (2005) 2 Supreme Court Cases 256.
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22. The Supreme Court has thus formulated the test: whether
on final decision being reached in the previous suit, such
decision would operate as res judicata in the subsequent suit.
23. Following the aforesaid pronouncement, in the case of Aspi
Jal and another vs. Khushroo Rustom Dadyburjor2, the
Supreme Court enunciated the essential ingredients and the
basic purpose of section 10 in the following words.
"9. ...... From a plain reading of the aforesaid provision, it is
evident that where a suit is instituted in a Court to which
provisions of the Code apply, it shall not proceed with the trial
of another suit in which the matter in issue is also directly and
substantially in issue in a previously instituted suit between the
same parties. For application of the provisions of Section 10 of
the Code, 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, i.e. "no court shall
proceed 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 of the Code are
satisfied. 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 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 courts in respect of the same relief
and is aimed to protect the defendant from multiplicity of
proceeding."
(emphasis supplied)
24. Whether the City Civil Court and the Court of Small
Causes can be said to be Courts of concurrent jurisdiction,
especially in the context of the exclusive jurisdiction conferred
2 (2013) 4 SCC 333.
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on the Court of Small Causes under section 33 of the Rent Act,
1999? To explore an answer, the nature of the jurisdiction
conferred on the Court of Small Causes is required to be
appreciated.
25. Section 33(1) of the Rent Act 1999 begins with a non-
obstinate clause. The expression, "any suit or proceedings"
employed in Section 33 is intended by the legislature to refer
only to those suits or proceedings relating to recovery of
possession which have been covered by the provisions of the
Rent Act and not the suit and proceedings relating to recovery of
possession which would arise under the general law. However,
Section 33 is not confined in its application only to a suit
between a landlord and tenant, in which such jurial
relationship is admitted but also applies to a suit in which the
relationship is asserted by one party and disputed by the other.
26. A profitable reference can be made to a three-Judge Bench
judgment of the Supreme Court in the case of Babulal
Bhuramal and another vs. Nandram Shivram and others 3 ,
wherein, in a converse scenario and in the context of Section 28
of the Bombay Rent Act 1947, the Supreme Court enunciated
the law as under:
3 1958 AIR 677.
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"8. The present suit filed in the City Civil Court raised in
substance a claim to the effect that the plaintiffs were the
tenants of the premises within the meaning of the Act. Such a
claim was one which arose out of the Act or any of its
provisions. The suit related to possession of the premises and
the right of the landlord to evict any of the plaintiffs was
denied on the ground that the first plaintiff was a tenant
within the meaning of the Act and the premises had been
lawfully sublet by him to the second and third plaintiffs. The
City Civil Court was thus called upon to decide whether the
first plaintiff was a tenant of the premises within the meaning
of the Act and whether he had lawfully sublet the same to the
second and third plaintiffs. The City Civil Court, therefore,
had to determine whether the plaintiffs had established their
claim to be in possession of the premises in accordance with
the provisions of the Act. As the tenancy of the first plaintiff
had been terminated by the landlord, this plaintiff could resist
eviction only if he established his right to continue in
possession under the provisions of the Act. On the
termination of the tenancy of the first plaintiff, outside the
provisions of the Act, the subtenancy would come to an end
and the landlord would be entitled to possession. This could
be denied to him only if the second and third plaintiffs could
establish that the premises had been lawfully sublet to them
and under S. 14 of the Act they must be deemed to be tenants
of the premises. in other words, the City Civil Court could not
decree the suit of the plaintiffs unless their claim to remain in
possession was established under the Act or any of its
provisions. Independent of the Act the plaint in this suit
disclosed no cause of action. Section 28 obviously
contemplates the filing of any suit relating to possession. of
any premises to which any of the provisions of Part II of the
Act apply between a landlord and a tenant and it authorizes
the court to deal with any claim or question arising out of the
Act or any of its provisions in such a suit. The suit of the
plaintiffs filed in the City Civil Court certainly is one relating
to possession of premises to which the provisions of Part II of
the Act apply and in that suit claims and questions arising
out of the Act or any of its provisions had to be dealt with. It
was, however, suggested that the suit in the City Civil Court
was not one between a landlord and a tenant because the
defendants of this suit did not admit that the plaintiffs were
the tenants of the premises in question. Section 28 applies to
a suit where admittedly the relationship of landlord and
tenant within the meaning of the Act subsists between the
parties. The plaint in the suit in the City Civil Court admits
that the defendants were landlords of the premises at various
stages and the plaintiffs were their tenants. The suit,
therefore, was essentially a suit between a landlord and a
tenant. The suit did not cease to be a suit between a landlord
and a tenant merely because the defendants denied the claim
of the plaintiffs. Whether the plaintiffs were the tenants would
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be a claim or question arising out of the Act or any of its
provisions which had to be dealt with by the court trying the
suit. On a proper interpretation of the provisions of S. 28 the
suit contemplated in that section is not only a suit between a
landlord and a tenant in which that relationship is admitted
but also a suit in which it is claimed that the relationship of a
landlord and a tenant within the meaning of the Act subsists
between the parties. The courts which have jurisdiction to
entertain and try such a suit are the courts specified in S. 28
and no other."
27. The ratio of the aforesaid judgment was explained by
another three-Judge Bench of the Supreme Court in the case of
Vasudev Gopalkrishna Tambwekar vs. Board of Liquidators,
Happy Home CHS Ltd.4, in the following terms:
"There is nothing in these observations to support the plea that
the jurisdiction of the ordinary courts to try a suit or
proceeding relating to recovery of possession of any premises to
which Part II of the Act applies is displaced as soon as the
contesting party raises a plea about the relationship of a
landlord and a tenant."
28. In the backdrop of the controversy at hand, it is imperative
to note, on the one hand, the City Civil Court has no
jurisdiction to decide whether the defendants in Suit No.7485 of
2005 were the tenants within the meaning of the Bombay Rent
Act, 1947 and, conversely, the Court of Small Causes has no
jurisdiction to decide whether the plaintiffs in RAD Suit No.
1227 of 2008, were the trespassers.
29. A reference can be made to a judgment of this Court in the
cases of Lockwood Industrial and Transport Services vs. Victoria
4 AIR 1967 SC 369.
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Timber Supplying Company5 wherein a learned Single Judge of
this Court held that the Bombay City Civil Court has no
jurisdiction to decide whether the relationship between the
plaintiffs and defendants was one of landlord and tenant or
licensor or licensee. The City Civil court could not decide
whether the defendants were licensees and were entitled to the
protection of the Rent Act by virtue of the amendment of 1 st
February, 1973. The suit itself was filed for possession of the the
premises, damages and mense profits. Such a suit would only
require the trial Court to ascertain whether the defendants are
in possession as a trespassers or not. The trial Court has no
business to decide that the defendants were tenants/protected
licensees.
30. Conversely in the case of Kusumkant Nagda vs. Mariam Bi
Ebrahim6 this Court held that the issue as to whether a person
is trespasser can be decided only by the City Civil Court. Court
of Small Causes has no jurisdiction to try such an issue. If the
relationship of landlord and tenant was not in question, the
provisions of Section 28 of the Rent Act cannot be invoked.
31. Since the Court of Small Causes in Brihanmumbai is the
Court of exclusive jurisdiction for the adjudication of the
5 2005 (3) Bombay CR 223.
6 2005 (3) Bombay CR 340.
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question as to whether a person is a tenant or licensee in
respect of the premises covered by the Rent Act, 1999, the City
Civil Court, Bombay, cannot be said to be a Court of concurrent
jurisdiction qua the said subject matter. Therefore, the question
that corps up for consideration is, whether, in the facts of the
case, the determination by the City Civil Court on the issue as
to whether the defendants in the said Suit-plaintiffs in the
instant suit, were not the tenants in respect of the suit premises
would operate as res judicata?
32. It is true, the respondent Nos.1(a) to 1(c) had approached
the City Civil Court with a case that the defendants in Suit
No.7485 of 2005 - the petitioners herein, were the trespassers.
The manner in which the City Civil Court approached the
controversy, de hors the merits of the decision of the City Civil
Court, assumes importance. From the perusal of the judgment
of the City Civil Court, it becomes abundantly clear that the
City Civil Court has elaborately delved into issue (d) (extracted
above) regarding the deemed tenancy of the defendants -
plaintiffs herein, under the provisions of Section 5(11)(c)(i) of the
Rent Act 1947 and returned a finding that they cannot be said
to be deemed tenants in respect of the suit premises. It is also
evident that the issue as to whether the Petitioners were the
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trespassers; Issue (a) (extracted above), was decided as
consequential to the findings on issue (d), in one paragraph. The
City Civil Court, it appears, premised the findings on the issue
of trespasser predominantly on its determination of the issue of
tenancy of the defendants therein.
33. From this standpoint, in my considered view, the issue of
jurisdiction assumes significance. If the foundational test,
namely, whether the decision on the issue of tenancy rendered
by the City Civil Court in Suit No.7485 of 2005 operates as res
judicata is to be satisfied, then the City Civil Court must have
the subject matter jurisdiction. Absent such jurisdictional
competence, the findings rendered by the Court in the former
suit loses the essential characteristic to operate as res judicata.
34. A useful reference can be made to the decision of the
Supreme Court in the case of Isabella Johnson vs M.A. Susai7,
wherein it was postulated that a decision on the question of
jurisdiction of the Court or a pure question of law unrelated to
the right of the parties to a previous suit, is not res judicata in
the subsequent suit. In the said case, the appellant had sought
recovery of possession of the demised premises by instituting a
suit before the City Civil Court. The respondent had taken a
7 1991 (1) SCC 494.
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preliminary objection that the City Civil Court had no
jurisdiction to entertain the suit, as the suit fell within
jurisdiction of the Rent Controller at Hyderabad. The Civil
Court repelled the objection, holding that before the Rent
Controller the respondent had taken a plea that the Rent
Controller had no jurisdiction, and it was the Civil Court which
had the jurisdiction to entertain the proceedings.
35. In second appeal, the High Court set aside the decree
passed by the trial Court and the First Appellate Court.
Upholding the decision of the High Court, the Supreme Court
observed, inter alia, as under:
"5. Learned counsel for the appellant submitted that the
learned Judge of the High Court was in error,as the earlier
decisions of the Rent Controller to the effect that it was the
City Civil Court and not the Rent Controller who had the
jurisdiction to entertain the suit for eviction filed by the
appellant against the respondent, constituted res judicata
between the parties on the question of jurisdiction. It was
submitted by him that, even if that decision was wrong, the
issue of jurisdiction was finally decided between the parties
and that decision was that it was the Civil Court and not the
Rent Controller that had the jurisdiction to entertain and
dispose of the suit for eviction. He further submitted that the
respondent could not be permitted to take inconsistent pleas
as he was barred by the principles of estoppel from taking up
the plea before the Civil Court that it was the Rent Controller
who had the exclusive jurisdiction to entertain the suit. He
placed reliance on a decision rendered by a Division Bench
comprising two learned Judges of this Court in Avtar Singh
and Others v. Jagjit Singh and Another, [1979] 4 SCC 83
which took the view that the Civil Court's decision regarding
lack of jurisdiction will operate as res judicata in a
subsequent suit. In that case the Civil Court declined
jurisdiction. The Civil Court took the view that it had no
jurisdiction to try the suit in question and directed the return
of the plaint for representation to the appropriate Revenue
Court. When the claim was filed in the Revenue Court, the
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Court took the view that it had no jurisdiction to try the
claim. Thereupon, a suit was again instituted in the Civil
Court for the lame relief. This suit failed throughout on the
ground of res judicata. The High Court affirmed the dismissal
and the Division Bench of this Court took the view that the
High Court was right in taking the view hat the principles of
res judicata were applicable to the issue of jurisdiction. In our
opinion, the contention of learned counsel for the appellant
cannot be upheld. We find that in Mathura Prasad Bajoo
Jaiswal and Others v. Dossibai N.B. Jeejeebhoy, [1970] 3 SCR
830 at p. 836 a Bench comprising three learned Judges of
this Court has taken the view that a decision on the question
of jurisdiction of the court or a sure question of law unrelated
to the right of the parties to a previous suit, is not res
judicata in the subsequent suit. The Court observed:
"It is true that in determining the application of the
rule of res judicata the Court is not concerned with
the correctness or otherwise of the earlier judgment.
The matter in issue, if it is one purely of fact, decided
in the earlier proceeding by a competent court must
in a subsequent litigation between the same parties
be regarded as finally decided and cannot be
reopened. A mixed question of law and fact
determined in the earlier proceeding between the
same parties may not, for the same reason, be
questioned in a subsequent proceeding between the
same parties. But, where the decision is on a
question of law, i.e. the interpretation of a statute, it
will be res judicata in a subsequent proceeding
between the same parties where the cause of action
is the same, for the expression "the matter in issue"
in S. 11 of the Code of Civil Procedure means the
right litigated between the par- ties, i.e. the facts on
which the right is claimed or denied and the law
applicable to the determination of that issue. Where,
however, the question is one purely of law and it
relates to the jurisdiction of the Court or a decision
of the Court sanctioning something which is illegal,
by resort to the rule of res judicata a party affected
by the decision will not be precluded from
challenging the validity of that order under the rule
of res judicata, for a rule of procedure cannot
supersede the law of the land."
6. The same view has been reiterated by a Bench
comprising three learned Judges of this Court in Sushil
Kumar Mehta v. Gobind Ram Bohra (dead) through his LRs.,
[1990] 1 SCC 193. We find that the decision of three learned
Judges of this Court in Mathurn Prasad Bajoo Jaiswal and
Others v. Dossibai N.S. Jeejeebhoy, has not been noticed at
all by the Division Bench comprising two learned Judges of
this Court which delivered the judgment in Avtar Singh and
Others v. Jagjit Singh and Another, and hence, to the extent,
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that the judgment in Avtar Singh's case takes the view that
the principle of res judicata is applicable to an erroneous
decision on jurisdiction, it cannot be regarded as good law. In
our opinion a court which has no jurisdiction in law cannot
be conferred with the jurisdiction by applying principles of res
judicata. It is well settled that there can be no estoppel on a
pure question of law and in this case the question of
jurisdiction is a pure question of law."
36. In the light of the aforesaid enunciation of law this court is
persuaded to hold that the learned Judge, Court of Small
Causes was in error in holding that the decision on the question
of deemed tenancy of the plaintiffs rendered by the City Civil
Court in Suit No.7485 of 2005 would operate as res judicata in
the instant suit and, thus, the instant suit was required to be
stayed. It would be contextually relevant to note that, in the
instant suit, the Court of Small Causes had framed the issues
which squarely fall within the exclusive jurisdictional province
of the Court of Small Causes. Therefore, the decision of the City
Civil Court, if it lacked the subject matter jurisdiction would,
under no circumstances, operate as res judicata for the
determination of the issues which arise for the adjudication in
the instant suit.
37. As noted earlier, this Court has not delved into the relative
merits of the claim of the parties. It is possible that, eventually,
the plaintiffs may not succeed in establishing their claim before
the Court of Small Causes. However, that cannot be a
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consideration for the stay of the suit under Section 10 of the
Code, where the jurisdictional competence of the Court, which
has decided the previous suit, to grant the relief claimed in the
subsequent suit is put in contest.
38. For the foregoing reasons, in my considered view, the
parameters to warrant the stay of the instant suit under Section
10 of the Code were not fulfilled. Hence, the impugned order
deserves to be interfered with.
39. Hence, the following order:
:OR DER:
(i) The petition stands allowed.
(ii) The impugned order stands quashed and set aside.
(iii) The Court of Small Causes shall hear and decide Suit
No.1227 of 2008 on its own merits and in accordance
with law.
(iv) The observations in this judgment were confined to
determine the legality, propriety and correctness of the
impugned order and they may not be construed as
expression of opinion on the merits of the rival claims.
(v) Rule made absolute to the aforesaid extent.
(vi) No order as to costs.
[N. J. JAMADAR, J.]
