CPC ASSIGNMENT

TOPIC- PUKHRAJ D. JAIN AND OTHERS VS G.

GOPALKRISHNA, 2004

Submitted to: Dr.

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

2. Facts 5

3. Trial court decision 5

4. High Court decision 5

5. Issues 6

6. Sections involved 6-7

7. Cases discussed 8-10

8. Observations 10

9. Court held 11

10.. Decision 11

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
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

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

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

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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
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

5 Munnilal v. Sarvajeet, AIR 1984 Raj 22.

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 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.

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

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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 {Subs. by Act 2 of 1951, s.3, for "the States".}
[India] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of
{Subs. by Act 2 of 1951, s.3, for "the States".} [India] established or continued by {Subs. by
the A.O.1937 for "the G.G.in C ".} [the Central Government {The words "or the Crown
Representative" rep. by the A.O.1948.}] and having like jurisdiction, or before {Subs. by the
A.O.1950 for "His Majesty Council".} [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

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

6 AIR 1999 Del 73

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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 (Relevant Excerpt)
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.
 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 (Relevant Excerpt)
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

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

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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

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 (Relevant Excerpt)

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

Court Held

Decision

Conclusion

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

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Suggestions

Bibliography
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 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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