Supreme Court warns, “It is not for the litigant to dictate to the court as to how the proceedings should be conducted”

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.

The Facts of Pukhraj D. Jain and Others v/s V. G. Gopalakrishna, AIR 2004 SC 3504:             

Through a sales agreement, appellants no 6 to 10 transferred the property to respondent no 1. 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 was not accepted by the trial court and the High Court.

In the meantime, the property was sold to appellant no 1 to 5. 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. Thereafter, the respondent no 1 also filed another suit seeking specific performance of the sales agreement. The respondent also filed an application under section 10 of CPC asking for a stay on his own suit on the ground that the issues involved in the suit were directly and substantially in issue in the previous suit filed by the appellant no 1 to 5.

The additional city civil judge of Bangalore dismissed the suit. 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. It is against this judgement of the High Court that the present appeal before the Supreme Court is preferred. The issues thus before the Supreme Court were:

  1. Was it obligatory for the Additional Civil Judge to take into consideration an application filed under section 10 of CPC?
  2. Whether Respondent No 1 was entitled to specific performance of the sales agreement executed in his favour by appellant no 6 to 10?

The Supreme Court Decision-

Section 16(C) of the Specific Relief Act lays down that the plaintiff must aver that the 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. In the present circumstances, it is absolutely clear that the respondent no 1 was not ready and willing to perform his part of the contract and in the view of the mandate of section 16 of the specific relief act, no decree for specific relief performance could be passed in his favour.

Additionally, the proceedings in the trial of a suit have to be conducted in accordance with provisions of the code of civil procedure. The 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 the courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The section merely enacts a rule of procedure and a decree passed in the contravention thereof is not a nullity. It is not for the 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.

Thus, the decree passed by the Trial Court was correct and the view adopted by the High Court was incorrect in law. The appeal was accordingly allowed and the judgement of the High Court was set aside.

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