CPC ASSIGNMENT

TOPIC- PUKHRAJ D. JAIN AND OTHERS VS G.

GOPALKRISHNA, 2004

Submitted to: Dr. Amritpal Kaur

Submitted by: Mannat Sarao

Registration number- 11614590

Section – L1601
 ACKNOWLEDGEMENT

Through this acknowledgement I would like to show my gratitude towards our teacher who
assigned us this project and gave us an opportunity to learn more and something out of the
box that had added up a different and new concept to our knowledge. I would even like to
thank all those people who helped us completing our project well in time and hereby we were
able to give our project in time. Thank you everyone for their support.

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 TABLE OF CONTENTS

Serial No. Index Page No.

1. Introduction 4-5

2. Facts 5-6

3. Trial Court decision 6

4. High Court decision 6

Supreme Court decision 7

5. Issues 7

6. Sections involved 7-8

7. Cases discussed 8-10

8. Observations 10

9. Court held 11

10.. Decision 12

11. Conclusion 12

12. Suggestions 12-13

13. Bibliography 14

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 Case- Pukhraj D. Jain vs G. Gopalkrishna 16th April 2004
Court-Before the Supreme Court of India

Bench- S. Rajendra Babu, G.P. Mathur

Introduction
Sec.10 of the Code of Civil Procedure, 1908 provides the rule with regard to stay of suits
where things are under consideration or pending adjudication by a court. The section reads
as:

“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 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.”

A plain reading of Sec. 10 of the Code of Civil Procedure makes clear that where the subject
matter of the suit is one and the same and the parties are also the same, under such
circumstances, if there are two suits between the parties, it is subsequent suit which has to be
stayed and not the previous one.1

The purpose of the section is to bring finality in the judgment and to avoid the contradictory
decision by the two different court, as there is a very good possibility that in case when
matter is simultaneously being decided by different courts of concurrent jurisdiction, the
courts may come up with different decisions and then it will be very difficult to finalize
which decisions to be abided by.

The section does not of course empower one court to stay the proceedings of another court.
For example, a district court exercising insolvency jurisdiction under the Provincial
Insolvency Act, 1920, cannot under this section stay a suit pending against the insolvent in a
subordinate court.2 However, since the provisions of the section are mandatory, the court

1 M.V. Rajashekhar v. M.V. Rajamma, ILR 2004 KAR 2302.

2 Official Receiver v. Palaniswami, (1925) 49 MLJ 203.

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before which the subsequent suit is pending ought to stay it where all the conditions laid
down in the section exist.3

The object underlying Sec. 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 a previously instituted suit.4 It is to obviate conflict of decisions of two
contradictory decrees being passed in respect of the same subject-matter between the same
parties that the present section has been enacted.

Thus, the basic object of Sec. 10 is to protect a person from multiplicity of proceedings
between the same parties.5

Hence, the two fold objects are:

 Avoid wasting court resources.

 Avoid conflicting decisions.

The Honourable Supreme Court in Pukhraj D. Jain and Others v/s G. Gopalakrishna
(2004) held that Section 10 of CPC does not put an embargo on the power of the court to
examine the merits of the matter. The object of the section is to prevent courts of concurrent
jurisdiction from simultaneously trying two parallel suits in respect of the same matter in
issue. The section enacts merely a rule of procedure and a decree passed in contravention
thereof is not a nullity.

Facts of the case

 Through a sales agreement, the owners of the suit property ie. appellants no 6 to 10
transferred the property to Dr. G. Gopalakrishna (respondent no 1) on 5.12.1974 for a
consideration of Rs.1,42,500/- and received Rs.42,500/- by way of advance. The suit
property was a residential building at Jayanagar, Bangalore.
 Respondent No 1 took the possession of the ground floor of the property and paid a
certain part of the money in advance. Later, he issued a legal notice rescinding the
agreement to sale and claiming back the money he had advanced. After some period

3 C.F. Sequeira v. P. Francisco, Civil Revision. Appeal. No. 19 of 1975 (High Court of Bombay at Goa,
16/9/1975).
4 National Institute of Mental Health & Neuro Science v. C. Parameshwara, AIR 2005 SC 242; Indian Express
Newspapers v Basumati Pvt. Ltd., AIR 1969 Bom 40.
5 Munnilal v. Sarvajeet, AIR 1984 Raj 22.

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 of time, he filed an amendment petition claiming that the suit be converted to specific
performance of the agreement of sale.
 This application was rejected by the trial court on 3.12.1984 on the ground that the
suit for specific performance had become barred by limitation. The Revision Petition
preferred against the said order was dismissed by the High Court at the admission
stage on 29.5.1985.
 In the meantime, the property was sold to appellant no 1 to 5 (Pukhraj D.Jain and his
four sons) and they were put in the possession of the first floor of the building.
 Appellant no 1 to 5 filed a suit before the court for eviction of the respondent 1 from
the ground floor and for mesne profits.

Trial Court Decision

 On 2.4.1988 the respondent no.1 filed another suit against appellant nos. 6 to 10 in
the Court of City Civil Judge, Bangalore for specific performance of the
agreement dated 5.12.1974. In this suit issue no.3 relating to the bar of limitation
and issue no.4 relating to the maintainability of the suit were framed.
 The respondent no.1 also filed an application under section 10 CPC seeking stay
of his own suit on the ground that the issues involved were also directly and
substantially in issue in a previously instituted suit being by the appellants nos.1 to
5 for his eviction from the ground floor of the house and for possession.
 The Addl. City Civil Judge, Bangalore dismissed the suit after deciding issues
no.3 and 4 wherein he held that the suit was barred by limitation and the same was
not maintainable.

High Court Decision

 An appeal was filed before the High Court who allowed the appeal.
 According to High Court, it was obligatory on the part of the Additional Civil Judge
to have considered the application moved under section 10 CPC at the first instance.
Since the Additional Civil judge did not pay any heed to notice under section 10 CPC,
the order of the judge was wholly illegal.

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Supreme Court

 This appeal by special leave has been preferred by the defendants against the
judgment and order dated 17.3.1997 of High Court of Karnataka by which the
Regular First Appeal preferred by the plaintiff was allowed and case was remanded to
the trial court with certain directions

Question of law and issues

1. Was it obligatory for the Additional Civil Judge to take into consideration an
application filed under section 10 of CPC?

2. Whether application under Sec.10 of C.P.C. should be considered at first instance

before deciding issues?

3. Whether Respondent No 1 was entitled to specific performance of the sales agreement

executed in his favour by appellant no 6 to 10?

Sections and provisions involved

Code of Civil Procedure, 1908

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 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
{Subs. by Act 2 of 1951, s.3, for "the States".} [India] from trying a suit founded on the same
cause of action.

The Specific Relief Act, 1963

Section 16 Personal bars to relief

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Specific performance of a contract cannot be enforced in favour of a person—

(a) who would not be entitled to recover compensation for its breach; or

(b) who has become incapable of performing, or violates any essential term of, the contract
that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at
variance with, or in subversion of, the relation intended to be established by the contract; or

(c) who fails to aver and prove that he has performed or has always been ready and willing to
perform the essential terms of the contract which are to be performed by him, other than
terms the performance of which has been prevented or waived by the defendant. Explanation.
—For the purposes of clause (c),—

(i) where a contract involves the payment of money, it is not essential for the plaintiff to
actually tender to the defendant or to deposit in court any money except when so directed by
the court;

(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the
contract according to its true construction.

Additional case laws

1. Escorts Construction Equipment Ltd. v. Action Construction Equipment Pvt.

Ltd.6

Facts
The defendant had filed, for stay of present suit, an application under Sec. 10 of C.P.C., on
ground that the matter in controversy is pending in Jamshedpur Court also. This was opposed
by plaintiff on ground that, the defendants had raised issue of jurisdiction of Jamshedpur
Court to entertain same suit; and that application under Sec. 10 of C.P.C. can be filed in the
present suit, only if objection with respect to lack of jurisdiction was withdrawn in
Jamshedpur Court.
Judgment
Delhi High Court held that the conditions requisite to invoke Sec. 10 of C.P.C. are:
 Matter in issue in both the suits to be substantially the same.
 Suit to be between the same parties or parties litigating under them.

6 AIR 1999 Del 73

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  Previously instituted suit to be in the same Court or a different Court, which has
jurisdiction to grant the relief asked.
There is nothing to the effect that defendant should not question the competency of previous
Court in the previously instituted suit, and there remains the fact that the plaintiff in their
defense against Sec.10 of C.P.C., had not stated the Jamshedpur Court is competent. Thus,
relief was granted to the defendant.
2. Prakash Gangappa Kadahatti v. Awwakka Gangappa Kadahatti7

Facts
A suit was filed by Smt. Awwakka (Respondent) seeking a declaration that adoption deed
allegedly executed by her was illegal and void ab initio. A decree of permanent injunction
was sought against the petitioner herein, who claimed that he was the duly adopted son under
the said adoption deed, restraining him from interfering with peaceful possession and
enjoyment of the suit properties.
After about two years, petitioner on the filed a suit seeking a declaration that he was the duly
adopted son of deceased Gangappa Kadahatti and Smt. Avvakka (Respondent). He also
sought for a permanent injunction restraining Respondent from alienating the suit property. In
the said suit Resopdent filed an application under Sec. 10 of C.P.C. seeking stay of the
proceedings contending inter alia that questions in issue in the subsequent case were directly
and substantially in issue in the suit instituted earlier by her and, therefore, the second suit
had to be stayed as otherwise it would lead to inconsistent or contradictory judgments. Trial
Court had allowed the said application and has stayed the second suit. Aggrieved by the
same, present writ petition was filed by the alleged adoptive son.
Judgment
The issue that directly and substantially falls for consideration in the two suits is with regard
to validity of the adoption of the petitioner by Respondent and her husband. Respondent has
filed the earlier suit seeking a declaration that the adoption was illegal and void ab initio. The
second suit is based on the same adoption deed seeking a declaration that adoption was valid.
In such circumstance, if both the suits are permitted to be tried parallel. There is every
likelihood of inconsistent and contradictory judgments by the two different Courts.
Therefore, the matter squarely falls under Sec. 10 of C.P.C.
3. Jayanta Nandi v. Probir Nandy8

7 Writ Petition No. 103345/2015, (Karnataka High Court, 17/03/2016).

8 Writ Petition No. 2120/2015, (Calcutta High Court, 10/02/2016).

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Facts

Opposite parties acquired right, title, interest and possession of schedule property on strength
of gift deed executed by deceased-Owner but said deceased-Owner challenged gift deed in a
suit. However, said suit was dismissed on contest. After demise of deceased-Owner, opposite
parties granted some time to petitioner to vacate schedule property who was inducted into the
same by deceased-Owner but petitioner had not vacated premises and hence, opposite parties
filed a suit for eviction of petitioner. Later, petitioner along with other legal heirs of
deceased-Owner filed another suit challenging judgment and decree passed in the previous
suit on various grounds and also filed application with prayer to stay suit. However, Trial
Court rejected said application under Sec. 10 read with Sec. 151 of C.P.C. and hence, instant
the instant application was filed.

Issue Raised

Whether application under Sec.10 of C.P.C. can be allowed?

Judgment

Matter in issue in both the suits are not directly and substantially identical though it could be
that one of the issues regarding validity of impugned deed could be incidentally or co-
laterally in issue in both suits. Hence, Trial court is perfectly justified in rejecting application
under Sec. 10 read with Sec. 151 of C.P.C. holding inter alia that the matter in issue in both
suits is not directly and substantially identical. Sec. 10 of C.P.C. would apply only if whole of
subject matter in both the proceedings is identical. Application was dismissed

Observations

 Section 16(C) of the Specific Relief Act lays down that specific performance of a contract
cannot be enforced in favour of a person who fails to aver and prove that he has performed or
has always been ready and willing to perform the essential terms of the contract which are to
be performed by him, other than terms the performance of which has been prevented or
waived by the defendant. Explanation II to this sub-section provides that the plaintiff must
aver performance of, or readiness and willingness to perform, the contract according to its
true construction. The requirement of this provision is that plaintiff must aver that he has
always been ready and willing to perform the additional terms of the contract. Therefore not
only there should be such an averment in the plaint but the surrounding circumstances must

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also indicate that the readiness and willingness continue from the date of the contract till the
hearing of the suit. It is well settled that equitable remedy of specific performance cannot be
had on the basis of pleadings which do not contain averments of readiness and willingness of
the plaintiff to perform his contract in terms of Forms 47 and 48 of CPC. Here the respondent
no.1 himself sent a legal notice rescinding the contract and thereafter filed OS no.801 of 1977
on 7.11.1977 claiming refund of the advance paid by him. In fact the suit for recovery of the
amount was decreed by the trial court on 24.7.1985 but he himself preferred a revision
against the decree wherein an order of rejection of the plaint was passed by the High Court.
In such circumstances, it is absolutely apparent that the respondent no.1 was not ready and
willing to perform his part of the contract and in view of the mandate of section 16 of the
Specific Relief Act no decree for specific performance could be passed in his favour. The
trial court, therefore, rightly held that the suit filed by respondent no.1 was not maintainable.

Court Held

 The view taken by the High Court is wholly erroneous in law and must be set aside. The
proceedings in the trial of a suit have to be conducted in accordance with provisions of the
Code of Civil Procedure. Section 10 CPC no doubt lays down that 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 having jurisdiction to grant the relief claimed. However, mere filing
of an application under section 10 CPC does not in any manner put an embargo on the power
of the court to examine the merits of the matter. The object of the section is to prevent Courts
of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same
matter in issue. The section enacts merely a rule of procedure and a decree passed in
contravention thereof is not a nullity. It is not for a litigant to dictate to the court as to how
the proceedings should be conducted, it is for the court to decide what will be the best course
to be adopted for expeditious disposal of the case. In a given case the stay of proceedings of
later suit may be necessary in order to avoid multiplicity of proceedings and harassment of
parties. However, where subsequently instituted suit can be decided on purely legal points
without taking evidence, it is always open to the court to decide the relevant issues and not to
keep the suit pending which has been instituted with an oblique motive and to cause
harassment to the other side.

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Decision
The appeal was accordingly allowed with costs throughout and the judgment and order of the
High Court dated 17.3.1997 was set aside. The decree dismissing the suit passed by the trial
court was affirmed.

Conclusion
It can be concluded that Section 10, however, does not take away power of the court to
examine the merits of the matter. If the court is satisfied that subsequent suit can be decided
purely on legal point, it is open to the court to decide such suit. The test for applicability of
Section 10 is whether the decision in a previously instituted suit would operate as res judicata
in the subsequent suit. If it is so, the subsequent suit must be stayed. It is only the trial and not
the institution of the subsequent suit which is barred under this section. The subsequent suit,
therefore, cannot be dismissed by a court, but is required to be stayed. Thus, it lays down a
rule of procedure, pure and simple, which can be waived by a party. Hence, if parties waive
their right and expressly ask the court to proceed with the subsequent suit, they cannot
afterwards challenge the validity of the subsequent proceedings. This section aims to avert
inconvenience to the parties and gives effect to the rule of res judicata.
  

Suggestions

 In the matter or issue decided by the court collaterally also, the doctrine of res sub
judice and res judicata should be made applicable so that there may not be useless
litigation between the parties in dispute as the doctrine of res sub judice and res
judicata has no application where the matter in suit has not been “directly and
substantially” but only incidentally or collaterally in issue.

 The scope of section 10 and 11 should be extended in the basis of public policy and
not be limited to the decree passed by the court under the Code of Civil Procedure.

 The doctrine of res sub judice and res judicata should be applied in case of
compromise decree if it is passed fraudulently. Even the doctrine of res judicata under
the section 11 is not strictly applicable to compromise or consent decrees as the

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 section applies in terms only to what has been heard and finally decided by the court.
When the parties are intended to deciding the matter in issue finally and such
compromise or agreement is super added for seal of the court, the same may be
treated as decree finally decided by the court for the purpose of bar of general rule of
res judicata and giving effect to the provision of Section 89 inserted by the
Amendment Act of 1999 in the Code of Civil Procedure.

 The scope of constructive res judicata should be extended in general proceedings and
even to cover decisions in claim proceedings. The decision in claim proceedings
under Rule 58 of Order XXI becomes conclusive and operates as res judicata in
subsequent proceedings. But it can be challenged in a suit brought under rule 58 (5),
or it may also be challenged by bringing a regular suit without taking recourse to the
provisions of order XXI, Rule 58. Such suit should be barred by the doctrine of
Constructive res judicata to avoid multiplicity of litigation and to bring about finality
of the decision.

 The doctrine of res judicata should be made applicable in acquittal proceedings also
through the principles of double jeopardy even under Article 20 (2) of the
Constitution of India.

 The doctrine of res judicata should be applied in case of writ petition passed by the
High Courts and the Supreme Court of India. As the doctrine of res judicata is not
confined to the issues which the court is actually asked to decided but to covers those
issues or facts which from so clearly the part of the subject- matter and they could
have been so clearly raised. It would be an abuse of the process of the court if such
issues or facts are allowed in a new proceeding and it is also in the public interest that
a decision should be given finality and no one should be vexed twice over with the
same kind of litigation.

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 Bibliography
 Books Referred
Sir Dinshaw Fardunji Mulla, The Code of Civil Procedure, 106 (2013).
C.K. Takwani, Civil Procedure with Limitation Act, 129 (2014).
M.P. Jain, The Code of Civil Procedure, 124 (2011).
Dr. Avtar Khan, Principles of Mohammedan Law, 22 (2014).

 Research Portals Accessed

www.manupatra.com
www.indiankanoon.com

 Statue Referred
The Code of Civil Procedure, 1908

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