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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.