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CASE NO.:

Appeal (civil) 2082 of 1998

PETITIONER:

Pukhraj D. Jain & Ors.

RESPONDENT:

G. Gopalakrishna

DATE OF JUDGMENT: 16/04/2004

BENCH:

S. Rajendra Babu & G.P. Mathur

JUDGMENT:

JUDGMENT

G.P. MATHUR, J.

1. 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.

2. In order to understand the controversy involved it is necessary to set

out the facts which are little involved.

(i) 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.

(ii) 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 of

advance. After 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 on

29.5.1985.

(iii) 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.

(iv) 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

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deficiently stamped. The trial court decreed the suit for recovery of

the amount on 24.7.1985.

(v) 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.

(vi) 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 profits.

(vii) 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 framed.

The 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.

(viii) 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

maintainable.

(ix) 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.

City 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 appeal.

(x) 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.

3. The 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

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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.

4. We 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 side.

5. The 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.

After 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.

The 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

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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.

6. 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 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.

7. In 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.

The 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.