LexPUKHRAJ D. JAIN AND ORS. versus G. GOPALAKRISHNA
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A B c PUKHRAJ D. JAIN AND ORS. v. G. GOPALAKRISHNA APRIL 16, 2004 [S. RAJENDRA BABU AND G.P. MATHUR, JJ.] Civil Procedure Code, 1908; Ss. 10, 47, 48 and 151/Limitation Act, 1963; Article 54/Specific Relief Act, 1963; Section 16C: Agreement to sell property-Payment of part consideration by first party- purchaser-Transfer of part possession by owner-Rescinding the contract first party filed a suit for recovery of advance against the owner-Application for amendment to convert the suit into one for specific performance of the agreement of sale-Rejected by trial Court on the ground of limitation- D Owner sold the property to another party and transferred possession thereof- Suit decreed by trial Court for recovery of the amount....,....Challenged by judgment creditor himself by filing a revision petition-Allowed by High Court observing it as unusual revision-Suit for eviction filed by new owners claiming possession and mesne profit-Another suit for specific performance filed by the first party against original owner and also filed an application for stay of suit under E Section JO CPC on ground of res judicata-Trial Court dismissed the suit as barred by limitation-Appeal allowed by the High Court remanding the matter to trial Court for disposal of stay application-On appeal, Held: It is open to the Court to decide early the suit which was instituted with an oblique motive to cause harassment to opposite party-Findings of the High Court wholly F erroneous in law since Section 10 CPC enacts merely a rule of procedure and a decree passed in contravention thereof is not a nullity-Since original owners were not prepared to execute the sale deed and trial Court having rejected the suit for specific performance as barred by limitation, the first party has notice of refusal of performance-Article 54 of Limitation Act attracted-Since the first party h~mself was not willing to perform his part of the agreement, no G decree of specific performance could be passed in his favour-Hence, the trial Court rightly held that the suit was not maintainable as barred by limitation. H Appellant Nos. 6 to 10, original owners, executed an agreement to sell the suit property in favour of respondent and in consideration thereof 324 P.O. JAIN v. G. GOPALAKRISHNA 325 received certain sum of money by way of advance and in lieu thereof A parted with possession of the ground floor of the property to respondent. The respondent rescinded the contract and filed a suit for recovery of the advance. After lapse of considerable period of time he also filed an application to convert the suit into one for specific performance of the agreement of sale. Trial Court rejected the application on the ground that B the suit for specific performance had· become barred by limitation. High Court dismissed the Revision Petition. The trial Court decreed the suit for recovery of the advance. Respondent filed a Revision petition. High Court allowed the revision petition, dismissing the suit observing it as unusual revision. In the meanwhile original owners sold the property to appellant Nos. 1 to 5. New owners of the property filed an eviction petition against the respondent seeking eviction and mesne profit. However, the respondent also filed another suit for specific performance of the earlier agreement and also filed an application seeking stay of suit on the ground of res judicata. Trial Court dismissed the suit as barred by limitation. Aggrieved, D respondent preferred an appeal which was allowed by the High Court remanding the matter to the trial Court for disposal of the application for stay of the suit. Hence the present appeal. Allowing the appeal, the Court E HELD: 1.1. The view taken by the High Court is wholly erroneous in law and is set aside. The proceedings in the trial of a suit have to be conducted in accordance with provisions of the Code of Civil Procedure. The object of Section 10 CPC is to prevent Courts of concunent jurisdiction from simultaneously trying two parallel suits in respect of the F 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 n
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