D. Jain & Ors Vs. G. Gopalakrishna  Insc 275 (16 April 2004)
Babu & G.P. Mathur G.P. Mathur, J.
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.
order to understand the controversy involved it is necessary to set out the
facts which are little involved.
The appellant no.6 to 10 are sons and daughters of Shri M.G. Dayal and they
were owners of the suit property (residential building at Jayanagar, Bangalore). They executed an agreement to
sell the suit property in favour of Dr. G. Gopalakrishna (plaintiff/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 respondent no.1 was also put in possession
of the ground floor of the property.
The respondent no.1 issued a legal notice rescinding the contract and claimed
refund of the advance amount paid by him. On 7.11.1977 he filed OS No.801 of
1977 (subsequently renumbered as OS No.1891 of 1980) against the appellant nos.
6 to 10 (owners of the property) claiming the amount which had been paid by way
considerable period of time respondent no.1 moved an amendment application
seeking permission to convert the suit into one for 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
being CRP No.702 of 1985 was dismissed by the High Court at the admission stage
The appellant nos. 1 to 5 (Pukhraj D.Jain and his four sons) purchased the
property in dispute from the original owners, namely, respondent nos. 6 to 10
on 18.4.1985 for Rs.3,60,000/- and they were put in possession of the first
floor of the building.
Respondent no.1 filed an amendment application on 26.6.1985 seeking an
amendment of the plaint in OS No.801 of 1977 and claiming an additional amount
of Rs.125 towards the cost of the legal notice. The amendment application was
allowed and the respondent no.1 was required to pay an additional court fee of
Rs.12.50 in view of the enhanced claim. However, instead of paying aforesaid
amount the respondent no.1 filed a memo stating that he was not in a position
to pay the court fee and as such the plaint may be rejected being deficiently
stamped. The trial court decreed the suit for recovery of the amount on
Though the suit filed by respondent no.1 was decreed yet he preferred a
revision petition being CRP No.3797 of 1985 challenging the judgment and decree
passed in his favour. The High Court though observed that it was an unusual
revision filed by a plaintiff yet allowed the same on 18.2.1987, set aside the
judgment and decree of the trial court and rejected the plaint.
The appellants nos.1 to 5 after execution of the sale deed in their favour on
18.4.1985, filed a suit being OS no. 4631 of 1986 seeking eviction of
respondent no.1 from the ground floor of the house in dispute and also for mesne
On 2.4.1988 the respondent no.1 filed another suit being OS no.1629 of 1988
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
respondent no.1 also filed an application under section 10 CPC seeking stay of
his own suit OS no. 1629 of 1988 on the ground that the issues involved were
also directly and substantially in issue in a previously instituted suit being
OS no. 4631 of 1986 which had been filed 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 OS no. 1629 of 1988 on 30.9.1995 after deciding issues no.3 and 4
wherein he held that the suit was barred by limitation and the same was not
The respondent no.1 preferred RFA no.635 of 1996 in the High Court against the
judgment and decree dated 30.9.1995 of the Addl.
Civil Judge, Bangalore. The High Court allowed the appeal
and set aside the judgment and decree of the Addl. City Civil Judge and
remanded the matter to the trial court to dispose of the application moved by
the respondent no.1 (plaintiff) under section 10 CPC for stay of his suit. It
is this judgment and order which is subject matter of challenge in the present
The suit for eviction of respondent no.1 and possession (OS no. 4631 of 1986)
filed by the appellant nos. 1 to 5 was decreed by the trial court on
20.12.1997. RFA no. 171 of 1998 preferred by respondent no.1 against the
aforesaid judgment and decree was dismissed by the High Court on 2.7.2001. This
development has taken place subsequent to the filing of special leave petition
in this Court.
only ground urged in the appeal preferred by respondent no.1 in the High Court
was that as he had filed an application under section 10 CPC on 21.10.1993
seeking stay of his suit (OS no.1629 of 1988), it was obligatory upon the trial
court to consider the said application first before deciding issues no.3 and 4.
The High Court has observed that the defendants in the suit had sought time to
file objection in reply to the application moved under section 10 read with
section 151 of CPC seeking stay of his suit. Thereafter the suit was listed on
several dates for consideration of the application but finally, after hearing
the counsel for the parties, the learned Addl. City Civil Judge dismissed the
suit by deciding issues no. 3 and 4 and the application under section 10 CPC
was not at all considered. It was obligatory on the part of the learned Addl.
City Civil Judge to have considered the application moved under section 10 CPC
at the first instance before deciding issues no. 3 and 4. The High Court has
held that the course adopted by the learned Addl. City Civil Judge in not
deciding the application moved by the plaintiff and in proceeding to decide
issues no. 3 and 4 was wholly illegal. On these findings the judgment and decree
of the High Court were set aside and the case was remanded to the court of
Addl. City Civil with a direction to dispose of the application under section
10 read with 151 CPC moved by the plaintiff on priority basis.
have heard learned counsel for the parties and have perused the records. In our
opinion, 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
facts in the present case speak for themselves. The agreement in question was
executed by appellants nos.6 to 10 (original owners) in favour of G. Gopalakrishna
(respondent no.1) on 5.12.1974. He himself issued a legal notice rescinding the
contract and claiming refund of the advance amount paid. Thereafter on
7.11.1977 he filed a suit for recovery of the advance amount paid by him. This
clearly shows that he gave up his right under the contract for execution of
sale deed of the property in his favour.
considerable period of time he filed an application for amendment seeking to
convert the suit into one for specific performance of agreement of sale but the
said application was dismissed by the trial court on 3.12.1984 as being barred
by limitation. The Revision preferred against the said order was dismissed by
the High Court and therefore the finding of the trial court that the relief
seeking specific performance of agreement of sale had become time barred
attained finality. The suit for recovery of the amount was decreed by the trial
Court on 24.7.1985 but on account of very clever device adopted by respondent
no.1 of seeking additional sum of Rs.125/- towards cost of legal notice and
thereafter not paying the requisite additional court fee of Rs.12.50 on the
enhanced claim, the High Court in a Revision filed by him set aside the decree
for refund of the amount and rejected the plaint.
suit giving rise to the present appeal was instituted by respondent no.1 on
2.4.1988 wherein he again sought specific performance of the agreement to sell
dated 5..12.1974. The trial court was of the opinion that the present suit was
filed after nearly 14 years. Even in the earlier suit (OS no.801 of 1977) the
amendment sought by the respondent no.1 wherein he wanted to convert his suit
into one for specific performance of agreement of sale had been rejected and a
finding had been recorded that the relief for specific performance had already
become time barred and this finding had been affirmed in Revision by the High
Court. Article 54 of the Limitation Act provides a limitation of three years
for instituting a suit for specific performance of a contract. This period of 3
years has to be reckoned from the date fixed for the performance, or if, no
such date is fixed, when the plaintiff has notice that performance is refused.
The appellant nos. 6 to 10 (original owners of the property) had opposed the
application moved by respondent no.1 in the earlier suit for amendment seeking
relief of specific performance of the agreement on the ground of limitation and
their plea was accepted. Thus it is crystal clear that long before filing of
the present suit the respondent no.1 had notice of the fact that the original
owners were not prepared to execute the sale deed in his favour. The original
owners (appellant nos. 6 to 10) sold the property in dispute in favour of appellants
nos.1 to 5 on 18.4.1985 after the amendment application had been rejected by
the trial court on the finding that the relief for specific performance had
become barred by limitation. On these facts no other inference was possible and
the trial court was perfectly justified in holding that the suit (OS no.1629 of
1988) was barred by limitation.
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.
not only there should be such an averment in the plaint but the surrounding
circumstances must also indicate that the readiness and willingness continue
from the date of the contract till the hearing of the suit.
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.
view of these facts the decree passed by the trial court dismissing the suit
was perfectly correct and the High Court committed manifest error of law in not
adverting to these aspects of the matter and in accepting the contention raised
on behalf of respondent no.1, which relate to a matter of procedure and not to
substance, that the application moved by him under section 10 CPC seeking stay
of the suit had not been considered on merits.
appeal is accordingly allowed with costs throughout and the judgment and order
of the High Court dated 17.3.1997 is set aside. The decree dismissing the suit
passed by the trial court is affirmed.