[Cites 12, Cited by 0]
Bombay High Court
Nikhilesh Keshrichand Jhaveri And Ors vs Johnson Dye Works P Ltd And Ors on 16 April, 2026
2026:BHC-AS:17866-DB
Neeta Sawant WP/11677/2025
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11677 OF 2025
Mr. Nikhilesh Keshrichand Jhaveri
and Ors .....PETITIONERS
: VERSUS :
Johnson Dye Works (P) Ltd.
and Ors. ....RESPONDENTS
Mr. Simil Purohit, Senior Advocate with Mr. Vishal Narichania & Ms.
Sushma Singh, for Petitioners.
Mr. M.M. Vashi, Senior Advocate with Ms. Panthi Desai i/b M.P. Vashi
& Associates, for Respondents.
CORAM : SANDEEP V. MARNE, J.
Reserved On: 02 April 2026.
Pronounced On: 16 April 2026.
JUDGMENT:
1) By this petition, Petitioners challenge order dated 4 August
2025 passed by the learned Judge, Small Causes Court rejecting the
application at Exhibit-265 filed in R.A.E. Suit No. 965/1427 of 2010. By
that application filed, the Petitioner/Defendant Nos. 6 to 8 sought stay of
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Digitally
signed by
NEETA
NEETA
SHAILESH
PAGE NO. 1 OF 19
SHAILESH SAWANT
SAWANT Date:
2026.04.16
19:37:47
+0530 16 APRIL 2026
Neeta Sawant WP/11677/2025
further trial in the suit till the judgment and decree dated 29 April 2025
passed in T.E. Suit No.185 of 2018 remains binding on the parties.
Petitioners also sought framing of additional issues concerning
maintainability of the suit in the light of Plaintiff's pleadings in T.E. Suit
No. 185 of 2018.
2) Considering the narrow issue involved in the petition and the
chequered history of litigation between the parties, it is not necessary to
narrate the detailed facts of the case. By Indenture of Lease dated 23
December 1938, lease in respect of the land bearing final Plot No.268,
TPS-III, Mahim, Mumbai-400 016 with the building standing thereon
situated at 16 Mogul Lane, Matunga (W) (suit property) was granted in
favour of Ratanchand and Tarachand Jhaveri, who were the predecessor in
interest of the Petitioners and Respondent Nos.2 to 12. Jhaveris inducted
New Era Textiles Pvt. Ltd. as their lessee in the suit property, which
claims to have sold its machinery to its successor in interest, M/s. New
Era Fabrics Ltd. (New Era). Jhaveris filed Suit No. 236 of 1968 against New
Era alleging illegal occupancy. By Consent Terms executed in the year
1977 between the heirs of Jhaveris and New Era Fabrics Ltd. (New Era),
monthly tenancy was created in favour of New Era. By Agreements dated
21 March 2000 and 6 January 2009, New Era created tenancy/Leave &
License with the Plaintiff-M/s. Johnson Dye Works Private Limited
(Johnson Dye Works) and handed over possession of the suit property.
Jhaveris terminated tenancy of New Era in February 2009 and filed T.E. &
R. Suit No. 48/62 of 2009 against New Era, Plaintiff and others seeking
their eviction from the suit property. By order dated 26 March 2014, the
Trial Court found paid up share capital of New Era to be in excess of Rs.1
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crores and the said finding was confirmed upto the Hon'ble Supreme
Court. This is how New Era lost protection from rent escalation and
eviction.
3) In the meantime, a Conveyance Deed dated 11 October 2009
was executed by the original owners in favour of the Plaintiff conveying
the suit property. This is how plaintiff, who was merely a licensee of New
Era, became the owner of the suit property and acquired rights higher
than that of Jhaveris who were lessees of the suit property. After purchase
of the suit property, Plaintiff terminated tenancy of Jhaveris vide notices
dated 18 November 2009 and 7 July 2010.
4) In the above backdrop, Plaintiff- Johnson Dye Works filed
R.A.E. Suit No. 965/1427 of 2010 seeking eviction of Defendant herein.
The suit was filed under Section 33 of the Maharashtra Rent Control Act,
1999 (MRC Act). Plaintiff also filed T.E. Suit No.12/15 of 2014 under the
provisions of Section 41 of the Presidency Small Causes Courts Act,1882
(PSCC Act) read with Transfer of Property Act, 1882 (TOPA). Plaintiff
also filed third suit bearing T. E. Suit No. 185 of 2018 under Section 41 of
the PSCC Act read with TOPA.
5) Plaintiff's third suit, being T.E.Suit No. 185 of 2018, came to
be decided first and the same was decreed vide judgment and order dated
29 April 2025 directing eviction of the Defendants therein. Petitioners
have filed Appeal against the decree dated 29 April 2025, which is
pending.
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6) After the decree in T.E. Suit No.185 of 2018 on 29 April 2025,
Petitioners, who are original Defendant Nos.6 to 8, filed application at
Exhibit-265 in R.A.E. Suit No. 965/1427 of 2010 seeking stay of the said
suit and also for framing of additional issues concerning maintainability
of the Suit. The application was resisted by the Plaintiff by filing reply. By
order dated 4 August 2025, the Trial Court has proceeded to reject
Petitioner's application at Exhibit-265. Order dated 4 August 2025 is the
subject matter of challenge in the present petition.
7) I have heard Mr. Purohit, the learned Senior Advocate
appearing for the Petitioners. He submits that the cause of action for
filing the present suit (R.A.E. Suit No. 965/1427 of 2010) is same as the
one for filing T.E. Suit No. 185 of 2018. That therefore Plaintiff cannot be
permitted to prosecute the first suit of 2010 in the light of having secured
a decree in the third suit of 2018. He submits that provisions of Section 10
of the Code of Civil Procedure, 1908 (Code) are aimed at Courts trying
and deciding two different suits based on same cause of action. That the
provision is aimed at preventing Court from passing conflicting decrees.
That the Court deciding third suit of 2018 has held that the Jhaveri's are
not entitled to protection under the rent control legislation. As against
this, the first suit of 2010 is premised on assertion that Jhaveri's are
protected tenants in respect of the suit property. That therefore
permitting decision of first suit of 2010 is likely to result in conflicting
decrees over same issues in the two suits filed on the basis of same cause
of action.
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8) Mr. Purohit further submits that though Section 10 of the
Code provides for stay of the subsequent suit, the provision can also be
applied for stay of previous suit. He relies on judgment of the Apex Court
in Manohar Lal Chopra Versus. Rai Bahadur Rao Raja Seth Hiralal 1 in
support of this contention that even a previously filed suit can also be
stayed in given circumstances. He submits that filing of 2 suits for same
cause of action of eviction of Jhaveri's is vexatious in nature and that
therefore provisions of Section 10 of the Code needs to be applied in the
present case for staying the previous suit of 2010.
9) Mr. Purohit further submits that passing of decree dated 29
April 2025 in the third suit of 2018 has changed the entire complexion. He
submits that even if it is assumed arguendo that there was no prohibition
for prosecuting both the suits simultaneously, once the third suit of 2018
is decreed by giving a declaration that the provisions of MRC Act do not
apply to the suit property, Plaintiff's cannot be permitted to prosecute
first suit of 2010 which is premised on an express assertion that
provisions of MRC Act do apply to the suit property. That the nature of
inquiry in the two suits is identical and that therefore evidence led in
both the suits is also same. That parties therefore cannot be required to
lead evidence unnecessarily in the first suit of 2010 when Plaintiff has
already secured eviction decree in the third suit. That no prejudice would
be caused to the Plaintiff if the first suit of 2010 is stayed since Plaintiff is
not only armed with eviction decree in the third suit of 2018 but is already
in possession of the suit premises. That in the event of the Appellate
Court setting aside decree dated 29 April 2025, Plaintiff would be free to
1 1961 SCC Online SC 17
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prosecute the first suit of 2010. On above broad submissions, Mr. Purohit
presses for setting aside the impugned order.
10) Mr. Vashi, the learned Senior Advocate appears for
Respondent No.1-Plaintiff and opposes the petition submitting that
Petitioners never objected to trial of first suit of 2010 during pendency of
the third suit of 2018. That from 2018 till 2025, the Petitioners did not
have objection about 2 suits being prosecuted simultaneously. That since
no request was made for stay of either of the suit from 2018 to 2025, there
is express admission that the nature of inquiry in the 2 suits is different.
He submits that cause of action for filing the two suits are different. That
parties in the two suits are also different. He further submits that the
Supreme Court has expedited the first suit of 2010 and has repeatedly
fixed timelines for deciding the said suit. He submits that by an order
dated 7 June 2024, the Supreme Court has directed expeditious decision
of the suit.
11) Mr. Vashi further submits that filing of application at
Exhibit-265 by the Petitioners was not a bonafide exercise. That the Court
has noted the conduct of the Petitioners in not raising any objection for 7
long years for trial of first suit of 2010. He therefore submits that
Petitioners have been taking contradictory positions in the different suits.
That in the third suit of 2018, Petitioners took a defence that they are
protected tenants under the provisions of MRC Act. That though the
defence is rejected, the appeal of the Petitioners is pending and in the
event Appellate Court, this Court or Supreme Court holding that Jhaveris
are protected tenants, Plaintiff is entitled to prosecute first suit of 2010
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and secure a decree on an assumption that Jhaveri's are protected
tenants. He therefore prays for dismissal of the petition.
12) Rival contentions raised on behalf of the parties now fall for
my consideration.
13) Parties have filed multiple suits against each other for
securing possession of the suit property which happened to be a plot of
land situated at a prominent location in Mumbai city. The case also
involves a unique circumstance where the original owners first created
lease in respect of the Jhaveris on 23 December 1938. Jhaveris apparently
created monthly tenancy in favour of New Era by filing consent terms in a
pending suit in the year 1977. New Era, in turn, inducted Plaintiff as a
licensee in the suit property. Jhaveris therefore filed T.E.& R Suit
No.48/62 of 2009 against New Era, Plaintiff- Johnson Dye Works and
others seeking recovery of possession of the suit property. After filing of
the said suit by Jhaveris in March 2009, the inductee-Johnson Dye Works
(Plaintiff) decided to purchase the entire suit property and accordingly
Conveyance Deed dated 11 October 2009 was executed with the original
owners. With the result, Johnson Dye Works changed its role from a mere
inductee/licensee of New Era to that of owner of the suit property. Thus,
while Jhaveris filed T.E.& R. Suit No. 48/62 of 2009 for ejectment of New
Era and Johnson Dye Works for violation of terms of tenancy by induction
of Johnson Dye Works, during pendency of that suit, the inductee-
Johnson Dye Works acquired ownership in respect of the suit property.
Conveyance deed dated 11 October 2009 thus put Johnson Dye Works into
the position of owner and Jhaveris into the position of its lessees. After
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establishment of relationship of lessor and lessee between Johnson Dye
Works and Jhaveris, the first suit of 2010 (R.A.E. Suit No. 965/1427 of
2010) was filed by Johnson Dye Works against Jhaveris seeking their
ejectment. That suit has been filed under an assumption that the Jhaveris
are protected tenants in respect of the suit property and accordingly the
suit is instituted under Section 33 of the MRC Act.
14) During pendency of first suit of 2010, an important
development occurred in the suit filed by Jhaveri's against New Era (T.E.&
R. Suit No. 48/62 of 2009) in which order dated 26 March 2014 was passed
by the Trial Court, which was confirmed upto the Apex Court holding that
New Era's paid-up share capital was more than Rs.1 crores and that
therefore it was not entitled to protection of MRC Act. The order dated 26
March 2014, which was helpful to Jhaveris for seeking ouster of New Era,
the same became a hurdle in their way in the third suit of 2018 filed by
Plaintiff-Johnson Dye Works. After realising that provisions of MRC Act
do not apply to the suit property, Plaintiff sniffed at opportunity for
seeing quicker ejectment of Jhaveris and accordingly filed third suit of
2018 (T.E. Suit No. 185 of 2018) under the provisions of Section 41 of the
PSCC Act read with provisions of TOPA. Thus, from the year 2018
onwards, Plaintiff- Johnson Dye Works started simultaneously
prosecuting the two suits for seeking eviction of Jhaveris. (It is not
necessary to make a detailed reference to one more suit of 2014 for
avoiding confusion). Plaintiff-Johnson Dye Works sought eviction of
Jhaveris in first suit of 2010 on an assumption that they might be treated
as protected tenants under the MRC Act. Simultaneously, they also
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started prosecuting the third suit of 2018 which proceeded on an
assumption that Jhaveris are not protected tenants under the MRC Act.
15) In law, it is permissible for the owner to simultaneously
prosecute two actions for eviction of lessees/tenants by treating the
lessees/tenants as protected and unprotected tenants under the rent
control legislation. This is particularly because of the long time involved
in attaining finality to the proceedings initiated by the lessor/landlord.
Considering the hierarchical levels of Small Causes Court, Appellate
Bench, High Court and the Supreme Court, it often takes decades for
finalisation of eviction proceedings. Thus, if landlord files a suit for
eviction against a tenant who has lost protection of MRC Act and it is
ultimately held that the tenant is entitled to rent control protection, the
landlord will have to start the eviction action all over again by filing a suit
under Section 33 of the MRC Act. To prevent this, Courts have recognised
the principle of simultaneous prosecution of two proceedings for seeking
ejectment of the tenant/lessee by treating him as a protected tenant and
also as unprotected tenant. In Funds and Properties of Parsi Punchayet
and others Versus. Minoo Keki Mistry and others2, this Court had similar
issue to decide. The defendants therein had raised the contention that the
pleas under Section 41 of PSCC Act and under Section 16 of the MRC Act
are mutually destructive and that therefore both the pleas could not be
raised in a single suit. In case before this Court, the suit was filed under
Section 41 of the PSCC Act on the footing that the suit premises were not
covered by the provisions of MRC Act. However, the Defendants filed
written statement claiming status of protected tenants. Therefore,
2 2024 SCC Online Bom 3275
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Plaintiffs amended the suit by raising an alternate plea for eviction of
defendants if they were treated as protected tenants. This Court took note
of several judgments of the Apex Court and of this Court and held in
paras-24 and 28 as under:
24. In my view therefore, incorporation of both the inconsistent and
alternative pleas of Defendants not being protected tenants and they
being protected tenants must be permitted to be raised in the same suit
as the same does not cause any prejudice to the Defendants and more
importantly avoids multiplicity of proceedings. As observed above, if the
amendment is not permitted and in the event the Court holds the
Defendants to be protected tenants, Plaintiffs will have to file a separate
suit and wait for considerable period of time to have their right of
ejectment determined by the Court. On the other hand, if the alternative
pleas are permitted to be raised and canvassed in the same suit, the
Small Causes Court would first conduct an enquiry as to whether
Defendants are protected tenants or not. In the event it holds that what
was leased was mere open piece of land and that Defendants are not
protected tenants, the Court can proceed to decree the suit under
section 41 of the PSCC Act. In the event the Small Causes Court answers
the above issues in the negative by holding that the Defendants are
protected tenants, it can immediately proceed to decide the grounds of
unlawful sub-letting, additions and alterations, non-user and bonafide
requirement raised by the Plaintiffs. Thus far from causing any prejudice
to the Defendants, the amendment would obviate unnecessary filing of
another round of litigation. In my view therefore, the amendment
sought to be incorporated by the Plaintiffs was rightly allowed and the
Appellate Bench has erred in reversing the decision of the Trial Court.
28. In my view, the doctrine of election would have no application to the
present case as the doctrine of election applies essentially to a case
where mutually exclusive courses are available to a person and, if by his
conduct, he makes the other person to believe that he is pursuing one of
the two courses leaving aside the other. The result of such act is that he
induced the other person to alter his course of action and subsequently
he cannot be permitted to alter his own stand by resorting to other
course which he intentionally decided not to follow. In the present case,
Plaintiffs' course of action of treating the suit property as open piece of
land and treating Defendants as not protected tenants has not resulted
in Defendants believing Plaintiffs' act as abandonment of right of
ejectment under section 16 of the MRC Act. Therefore, doctrine of
election has no application in the present case. In fact the principle of
estoppel by invoking doctrine of election is not applicable in the present
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case as Plaintiffs are otherwise free to institute a fresh suit under section
16 of the MRC Act in the event of their suit under section 41 of the PSCC
Act being dismissed for want of jurisdiction or as being not
maintainable. In my view therefore, neither doctrine of election nor
judgment of Calcutta High Court in Hiralal Alias Hiranand have any
application to the present case.
16) The only difference in the present case is that instead of
raising the inconsistent pleas of defendants being protected tenants and
unprotected tenants in the same suit, two distinct suits are filed by the
Plaintiff seeking eviction of Jhaveris. The first suit of 2010 is premised on
an assumption that Jhaveris are protected tenants, whereas third suit of
2018 is premised on an assertion that they do not enjoy protection under
the MRC Act.
17) Petitioners-Defendant Nos.6 to 8 who are now strenuously
seeking stay of first suit of 2010, never objected to simultaneous
prosecution of both the suits. Since they were confident of securing
declaration in the third suit of 2018 that they are protected tenants, they
never objected to Plaintiff prosecuting the first suit of 2010. Infact
decision of first suit of 2010 at an earlier point of time would have enured
to their benefit since the decree passed therein would have been used by
the Petitioners for defeating the third suit of 2018. This appears to be the
reason why Petitioners never objected to simultaneous prosecution of the
first suit of 2010. To their bad luck, the Small Causes Court decided third
suit of 2018 at an earlier point of time by holding that Jhaveris are not
protected tenants in respect of the suit property. It is only after passing of
eviction decree dated 29 April 2025 that the Petitioners were advised to
file application at Exhibit-265 on 6 May 2025 seeking following prayers:
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The Applicants - Defendant Nos.6 to 8 pray:
(a) That this Hon'ble Court be pleased to stay further Trial in the above
Eviction Suit until such time as the Order, Decree & Judgment passed on
29.04.2025 in T.E. Suit No. 185 of 2018 remains binding upon the
parties.
(b) That this Hon'ble Court be pleased to frame the additional issue
"Whether the present Eviction Suit is maintainable in light of the
Plaintiff's pleadings in the TE. Suit No. 185 of 2018 that MRCA did not
apply to the Suit Property."
(c) Such other and further reliefs as nature and circumstances of case
may require;
18) The Trial court has rejected the application at Exhibit-265 by
recording inter-alia following reasons:
15. In the present case, it is an admitted position that the present suit
for eviction has been instituted earlier under the provisions of the MRC
Act, whereas, the subsequently instituted T.E. Suit No. 185 of 2018, filed
under the PSCC Act was decreed in favour of the plaintiff on 29th April
2025. It is also evident that the causes of action in both suits, though
arising from the same lease deed and alleged breaches, are not entirely
identical in law or relief sought, given the different legal frameworks
under which each has been filed. More importantly, it is significant that
during the pendency of the said T.E. Suit for nearly seven years, the
defendants never approached that Court seeking a stay of that later
proceeding on the ground of pendency of the present, earlier-instituted
suit. It is only after the decree in the subsequent suit that the present
application has been moved, which casts serious doubt on the bona fides
of the defendants. The timing and conduct suggest that the application
is a belated and strategic attempt to obstruct further adjudication of the
present suit, rather than a genuine invocation of judicial economy or
protection from multiplicity.
16. Furthermore, as laid down in the rulings cited above, particularly
Jaihind Iron Mart and Prakash Chand Soni, the inherent powers under
Section 151 of the CPC may only be invoked to stay an earlier suit if
continuance of such proceedings amounts to an abuse of the process of
the Court or is shown to be vexatious, mala fide, or oppressive. In the
present case, neither in the application nor in the rejoinder have the
defendants even alleged, much less substantiated, that the present suit
is vexatious or has been instituted with mala fide intent. Rather, the
pleadings reveal that the defendants themselves have taken the position
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that the MRC Act is applicable to the subsequent T.E. Suit. If that be so,
the pendency and continuation of the present suit cannot be branded as
oppressive or abusive. On the contrary, it suggests that both suits are
founded on distinct statutory schemes and areprima facie maintainable
on their own footing. The reliance placed by the defendants on The
Laxmi Bank Ltd., Ambalal Sarabhai Enterprises, and R.E. Fanibunda is
distinguishable on facts and does not assist their cause, particularly
when no overlapping jurisdictional prejudice or res judicata is
demonstrated at this stage.
17. Since I have found that the present application is not maintainable
on the preliminary ground that a stay of an earlier-instituted suit at the
instance of a subsequently decreed suit is impermissible, I am not
inclined to enter upon or adjudicate other aspects canvassed by the
defendants, such as whether the issues are directly and substantially the
same, whether the parties are identical, whether the cause of action is
common, or whether future res judicata may arise. These questions are
left open for appropriate determination, if and when they properly arise.
Accordingly, the prayer for staying this suit is devoid of merits and
deserves to be rejected.
19) I am in broad agreement with the reasons recorded by the
Trial Court for rejecting Petitioner's application at Exhibit-265. Section
10 of the Code provides for stay of only the subsequent suit. Provisions of
Section 10 of the Code are as under :
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 India from trying a suit founded on the same
cause of action.
20) The Petitioners never sought stay of third suit of 2018 and
thereby impliedly admitted the position that the nature of inquiry in the
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two suits, cause of action for filing the two suits and the nature of relief
sought therein are different. Now Petitioners have turned around and
have contended that the cause of action, issues and evidence in the two
suits is same. Now they have sought stay of earlier suit. Faced with the
difficulty that Section 10 of the Code provides for stay of subsequent suit,
reliance is placed on judgment of the Apex Court in Manohar Lal Chopra
(supra). In case before the Apex Court the partnership was entered at
Indore for operation of coal mines. The Partnership Deed provided for
jurisdiction of Courts at Indore. However, the Appellant therein instituted
a Suit at Asansol. The Respondent filed application under the Arbitration
and Conciliation Act, 1940 for stay of the suit in view of arbitration
agreement in the Deed of Partnership. Additionally, the Respondent
therein also filed his own suit in the Court of District Judge, Indore. The
Respondent thereafter applied for stay of the suit filed at Asansol in
exercise of inherent powers under Section 151 of the Code. This is how
stay of earlier suit was sought on the ground that parties had agreed for
jurisdiction of Courts at Indore. Conversely, appellant applied to Indore
Court for stay of the suit under Section 10 and 151 of the Code.
Thereafter, the Respondent applied under Section 151 of the Code to
Indore Court seeking order of restraint against the appellant from
continuing the proceedings in suit filed by him in the Court at Asansol.
The Indore Court granted injunction in favour of the Respondent. High
Court dismissed the Appeal of the Appellant, and this is how the matter
reached the Apex Court. Two issues were raised before the Apex Court,
which are captured in para-15 of the judgment as under:
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15. On behalf of the appellant, two main questions have been raised for
consideration. The first is that the Court could not exercise its inherent
powers when there were specific provisions in the Code of Civil
Procedure for the issue of interim injunctions, they being Section 94 and
Order 39. The other question is whether the Court, in the exercise of its
inherent jurisdiction, exercised its discretion properly, keeping in mind
the facts of the case. The third point which came up for discussion at the
hearing related to the legal effect of the second proviso in the deed of
dissolution on the maintainability of the suit in the Court at Asansol.
21) Answering the first issue, the Apex Court held that if the
earlier suit is found to be vexatious, the Court can use powers under
Section 151 to restrain the Plaintiff of the earlier suit from prosecuting
the earlier suit by granting injunction. The Apex Court has further held
that even powers under Section 10 of the Code could be used for stay of
the previous suit which was found to be vexatious and filed in violation of
terms of contract. The Apex Court held in para-39 of the judgment as
under :
39. The suit at Indore which had been instituted later, could be stayed in
view of Section 10 of the Code. The provisions of that section are clear,
definite and mandatory. A Court in which a subsequent suit has been
filed is prohibited from proceeding with the trial of that suit in certain
specified circumstances. When there is a special provision in the Code of
Civil Procedure for dealing with the contingencies of two such suits
being instituted, recourse to the inherent powers under Section 151 is
not justified. The provisions of Section 10 do not become inapplicable on
a Court holding that the previously instituted suit is a vexatious suit or
has been instituted in violation of the terms of the contract. It does not
appear correct to say, as has been said in Ram Bahadur v. Devidayal Ltd.
17 that the legislature did not contemplate the provisions of Section 10
to apply when the previously instituted suit be held to be instituted in
those circumstances. The provisions of Section 35-A indicate that the
legislature was aware of false or vexatious claims or defences being
made, in suits, and accordingly provided for compensatory costs. The
legislature could have therefore provided for the non-application of the
provisions of Section 10 in those circumstances, but it did not. Further,
Section 22 of the Code provides for the transfer of a suit to another court
when a suit which could be instituted in any one of two or more courts is
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instituted in one of such courts. In view of the provisions of this section,
it was open to the respondent to apply for the transfer of the suit at
Asansol to the Indore Court and, if the suit had been transferred to the
Indore Court, the two suits could have been tried together. It is clear,
therefore, that the legislature had contemplated the contingency of two
suits with respect to similar reliefs being instituted and of the institution
of a suit in one Court when it could also be instituted in another Court
and it be preferable, for certain reasons, that the suit be tried in that
other Court.
22) In my view however, the judgment in Manohar Lal Chopra
would have no application to the facts of the present case. The issue
before the Apex Court was about correctness of an order of injunction
granted by the Court at Indore restraining the Plaintiff in suit filed in
Asansol from prosecuting that suit. The suit filed in Asansol was against
specific contractual agreement between the parties, which provided for
jurisdiction of Courts at Indore only. Very often, parties to contract
deliberately file suit at a Court not agreed under the contract with
malafide intention of seeking stay of subsequently filed suit at the correct
place agreed under the contract. In such situation, the ratio of the
judgment in Manohar Lal Chopra can be applied where even previously
filed suit can be stayed if it is found that previously filed suit is vexatious
in nature and against the contractual agreement between the parties. The
ratio of the judgment in Manohar Lal Chopra cannot be cited in support
of an abstract proposition that in every case, it is lawful for the Court to
stay previously filed suit by having recourse to the provisions of Section
10 of the Code. In the present case, it is difficult to hold that the first suit
of 2010 is vexatious and therefore the ratio of the judgment otherwise
does not apply to the present case.
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23) In the present case, the Supreme Court has time and again
expedited decision of R.A.E. Suit No. 965/1427 of 2010. Reference in this
regard can be made to the order dated 7 June 2024 which reads thus:
1. Heard learned counsel for the respective parties.
2. We do not find good ground to interfere in the impugned order.
Accordingly, the Special Leave Petition is dismissed.
3. The Suit, i.e, RAE Suit No.965/1427 of 2010, which is pending before
the Court of Small Causes is requested to be expedited.
4. It is needless to state that both parties to cooperate with the Court for
expeditious disposal.
5. Pending application(s), if any, shall stand disposed of.
24) Petitioners never objected to expeditious disposal of R.A.E.
Suit No. 965/1427 of 2010. This was because expeditious disposal of the
first suit of 2010 was possibly in the interest of the Petitioners. Now they
have taken a volte face and want stay of the first suit of 2010. The Trial
Court has rightly branded such an action of the Petitioners as a strategic
attempt to obstruct further adjudication of the suit rather than a genuine
invocation of judicial remedy. It would otherwise be imprudent for Small
Causes Court or this Court to stay proceedings of suit, hearing of which is
expedited by the Apex Court.
25) I am also in agreement with the findings of the Trial Court
that the two suits are founded on distinct statutory schemes and are
prima-facie maintainable on their own footings. The first suit of 2010 is
filed for eviction of Defendants therein on the grounds of commission of
breach of tenancy under Section 16 of the MRC Act. Thus, in the first suit
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of 2010, Plaintiff will have to make out one of the enumerated grounds
under Section 16 of the MRC Act for seeking eviction of the Defendants
therein. On the other hand, the third suit of 2018 is a simple ejectment
suit under Section 41 of the PSCC Act based on a premise that the
Defendants therein are not entitled for eviction protection under the MRC
Act. Upon proving that the lease is validly terminated as per the
provisions of TOPA, Plaintiff sought eviction in the third suit of 2018.
Thus, nature of inquiry in the two suits is altogether different. The parties
to the suit are also different as New Era, who is Defendant No.12 in T.E.
Suit No. 185 of 2018, does not appear to be a party in R.A.E. Suit No.
965/1427 of 2010.
26) So far as framing of additional issue of maintainability of the suit is
concerned, the said prayer is rejected by the Court at this juncture by
recording following reasons:
18. In so far as the defendants' conjoint prayer for framing of an
additional issue is concerned, I find such joinder with the substantive
prayer for stay rather unusual and procedurally misplaced. Nevertheless,
the said prayer is not rejected at this stage. As the proposed issue
pertains purely to a question of law concerning maintainability, the
Court is empowered under Order XIV Rule 5 of the CPC, to frame
additional issues at any stage of the proceedings, including after the
conclusion of evidence. Therefore, the said prayer shall be considered, if
necessary, after the evidence of both parties is concluded. In the result,
the application deserves to be rejected.
Thus the Court would exercise powers under Order XIV Rule 5 of the Code
for framing additional issues if considered necessary at the appropriate
stage. The issue is thus left open by the Court.
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27) Considering the above position, no case is made out for
interference in the impugned order. Filing of application at Exhibit-265
by the Petitioners was gross abuse of process of law. The Application has
been rightly rejected. The Writ Petition is devoid of merits. It is
accordingly dismissed without any order as to costs.
[SANDEEP V. MARNE, J.]
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