Important Judgment on CPC Part 1
Section 9 of CPC
- Important Judgment on CPC, Section 9 – Gundaji Satwaji Shinde v. Ramachan dra Bhikaji Joshi (AIR 1979 SC 653) – .
Facts of the case-Plaintiff sued for specific performance of a contract for sale of agricultural land in the civil court and defendant appeared and raised a contention in Sec 63 of the Tenancy Act the plaintiff being not an agriculturist, he is barred from purchasing the land. Such an issue being within the exclusive jurisdiction of the Mamlatadar (competent authority set up under the Tenancy Act).
Issue- Whether the plaintiff is an agriculturist or not, would the civil court have jurisdiction to decide the issue or the Civil Court would have to refer the issue under Sec. 85-A of the Tenancy Act to the authority constituted under the Act, viz. Mamlatdar.
Observations: There can be a civil suit properly constituted which the civil court will have jurisdiction to entertain but therein an issue may arise upon a contest when contentions are raised by the party against whom the civil suit is filed. Upon such contest, issues will have to be determined to finally dispose of the suit. If any such issue arise which is required to be settled, decided or dealt with by the competent authority under the Tenancy Act, even if it arises in civil suit, the jurisdiction of the Civil Court to settle, decide and deal with the same would be barred by the provision contained in Sec. 85 and the Civil Court will have to take recourse to the provision contained in Sec. 85-A for reference of the issue to the competent authority under the Tenancy Act.
The court further observed that a suit for specific performance of a contract for sale of land is cognizable by the civil court and its jurisdiction would not be ousted merely because contract, if enforced, would violate some provisions of the Tenancy Act, If contract when enforced would violate some provisions of the Tenancy Act it may be that the competent authority under the Tenancy Act, it may be that the competent authority under the tenancy Act may proceed to take action as permissible under the law but the Court cannot refuse to enforce the contract.
Decision-If there is an issue which had to be settled, decided or dealt with by the competent authority under the Tenancy Act, the jurisdiction of the Civil Court, notwithstanding the fact that it arises in an incidental manner in a civil suit, will be barred and it will have to be referred to the competent authority under the Tenancy Act. Therefore court overruled the decision of the High Court, upholding the jurisdiction of the civil court to deal with the issue instead of referring it to the Mamlatdar.
Section 10 of CPC
- Indian Bank v. Maharash tra State Co- operative Marketing Fed. Ltd. (AIR 1998 SC 1952)-Section 10- Res Sub Judice.
Facts of the case-Bank filed Summary Suit in the Bombay High Court under Order 37 of the Code against the Federation for obtaining a decree for Rs. 4,96,59,160 alleging that the said amount has become recoverable under a Letter of Credit. The Bank took out summons for judgment. The Federation appeared before the Court and took out Notice of Motion seeking stay of the summary suit on the ground that it has already instituted a suit being Suit against the Bank for recovery of Rs. 3,70,52,217.88 prior to the filing of the summary suit.
Issue- Whether the bar to proceed with trial of subsequently instituted suit, contained in Sec.10 is applicable to summary suit filed under Order 37 of the Code.
Observations: The word “trial” in Section 10, in its widest sense would include all the proceedings from the stage of institution of a plaint in a civil case to the stage of final determination by a judgments and a decree of the Court. However, in view of the object and nature of the provision and the fairly settled legal position with respect to passing of interlocutory orders it has to be stated that the word ‘trial’ in Sec. 10 is not used in its widest sense. Considering the objects of both the provisions i.e. Sec. 10 and O.37, wider interpretation of the word “trial” is not called for. The word ‘trial’ in Sec. 10 in the context of summary suit cannot be interpreted to mean the entire proceedings starting with the institution of the suit by lodging a plaint. In a summary suit the ‘trial’ really begins after the Court/Judge grants leave to the defendants to contest the suit. Therefore, the Court/Judge dealing with the summary suit can proceed up to the stage of hearing the summons for judgement and passing the judgement in favour of the plaintiff if (a) the defendant has not applied for leave to defend or if such application has been made and refused or if (b) the defendant who is permitted to defend fails to comply with the conditions on which leave to defend is granted.
Decision- The bar to proceed with trial of subsequently instituted suit, contained in Sec. 10 is not applicable to summary suit filed under Order 37 of the CPC.
Section 11 of CPC
- Iftikar Ahmed v. Syed Meharban Ali, AIR 1977 SC 749-Section-11- Res judicata between co-defendants.
Facts of the case- There was conflict of interest among co- plaintiffs. In the previous suit, Ishtaq Ahmed, K.Fatima, M.Ali (Co-plaintiffs) instituted a suit against the mortgagee, relating to shares of the latter two in mortgaged properties.in that suit it was decided that only Ishtaq Ahmed had title to the properties and other two had no title. The question of title which was in dispute was conclusively determined by a competent court. In the later suit the dispute was in between Ishtaq Ahmed on the one hand and K. Fatima and M. Ali on the other hand regarding the same property. The matter was referred to the arbitrator.
Issue- Whether earlier decision of the court regarding the title of the Property in question would operate as res- judicata in between the parties.
Observations: The SC held that if following 4 principles were satisfied then it would operate as res- judicata-
1)-There must be a conflict of interest between the parties.
2)-It is necessary to decide that conflict in order to give relief and determine the issue in the case.
3)-That such a conflict has been conclusively determined.
4)-The Co-defendants were necessary or proper parties in the former suit.
Decision-The SC held that since the four conditions were satisfied in the case and thus the principle of res judicata has to operate.
- State of U.P. v. Nawab Hussain (AIR 1977 SC 1680) “Constructive Res Judicata” Section 11, Explanation IV-Constructive Res judicata.
Facts of the case- In this case, the petitioner was dismissed from service. He filed a writ petition on the ground of denial of opportunity of being heard and that the action taken against him was mala fide. After that dismissal of petition he filed another petition alleging that he was appointed by the Inspector General of Police and he was dismissed by the Deputy I.G. He alleged that the latter was not empowered to dismiss him and therefore his order of dismissal was by a person who did not have the power to do so. He further contended that, he was not afforded a reasonable opportunity to meet the case against him in the departmental inquiry and that the action taken against was mala fide.
Issue- Whether a decision of the High Court on merits on a certain matter after contest, in a writ petition under Art. 226 of the Constitution, operates as res judicata in a regular suit with respect to the same matter between the same parties.
Observations: The provisions of Sec. 11 CPC are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording a fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the court deciding the matter formerly be a competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter.
Decision- The plea taken in the subsequent suit was an important plea which was within the knowledge of the petitioner when he filed the previous writ petition and this plea could well have been taken in the same petition.
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