Category: Code of Civil Procedure

You can grab notes on other topics of CPC here.

Facts: The disciplinary authority of National Institute of Mental Health & Neuro Sciences ordered the removal of the respondent from service for misappropriation of drugs to the extent of Rs. 1,79,668.46 and also directed the respondent to reimburse the appellant( the institute) to the extent of pecuniary loss suffered. Being aggrieved, the respondent herein moved the appellate authority. On failure on the part of the respondent to reimburse the loss, the appellant filed a civil suit in a civil court of Bangalore in 1995 to which the respondent files the written statement. In 1997 the government of Karnataka referred the industrial dispute raised by the respondent to the Labour Court at Bangalore for adjudication to which it held in favour of the respondent and set aside the order of removal. Subsequently appellant filed a writ petition questioning the award of labour court. The HC by an interim order stayed the operation of the order of reinstatement passed by the labour court.  In 2003 respondent filed an application under section 10 of CPC read with section 151. By the said application, the respondent herein sought a stay of the said suit till disposal of the writ petition to which the City Civil Judge dismissed the application made by the respondent. Subsequently, the respondent filed Civil Revision Petition.

Issue: Whether application dated 20.6.2003 filed by the respondent under Section 10 read with Section 151 CPC seeking a stay of a civil suit which the appellants filed in the Court of City Civil Judge, Bangalore to seek a decree for Rs. 1,79,668.46 with interest, was maintainable.

Held: The whole subject-matter in both suits has to be identical. Section 10 is preferable to a suit instituted in civil court. Proceedings before labour court cannot be equated with proceedings before the civil court. The scope of the writ petition is entirely different and distinct from a suit. High Court erred in directing trial court not to proceed with drawing up final decree.  Also, inherent jurisdiction under Section 151 cannot be exercised to nullify provisions of Code.

You can grab notes on other topics of CPC here.

 

You can grab notes on other topics of CPC here.

Facts: Plaintiff and defendant entered into an agreement of sale of a land in Patna. In clause 17 of that agreement, the plaintiff was to execute and give an irrevocable general power of attorney to the defendant, and that power was to be governed by the provisions of that agreement. The terms and conditions of the agreement were to prevail in case of conflict between the power and the agreement.

Alleging that the members of the Hindu undivided family of which the plaintiff was the Karta, failed and neglected to carry out their obligations in terms of the agreement for sale, the defendant, as the plaintiff in the court of the first subordinate judge in Patna files a suit in July 2004. It prayed for a decree for specific performance of a contract for the sale of the land. It impleaded one Manvendra Singh as the second set defendant in that suit. First Defendant files written statement in April 2005.

On December 8, 2004, a case was filed in Calcutta high court by the first defendant in Patna suit in the capacity of being a Karta of Hindu undivided family. He alleged that since the defendant failed and neglected to discharge its obligation in terms of the agreement, the agreement for sale stood determined, and as a result, the power of attorney executed in terms of Clause 17 of the agreement stood cancelled. He also alleged that for non-registration the power of attorney concerned was invalid and void. He prayed for a decree declaring the power of attorney as void and cancelled. On June 6, 2005, the defendant took out the present application under Section 10.

Issue: Whether the matter in issue in the Calcutta suit is directly and substantially in issue in the Patna suit under section 10 of the CPC as in the subsequent suit another party(First defendant) in addition to the previous one( Second defendant: Manvendra Singh) was included.

Contentions: Defendants counsel contended that the matter in issue in the Calcutta suit is whether the agreement for sale had stood determined, and hence it is directly and wholly in issue in the Patna suit where his client prayed for a decree for specific performance of the contract arising out of that agreement. A test is not whether parties in the suits are identical in every aspect. He contends in a subsequent suit a person can be

Plaintiff: According to counsel for the plaintiff though the issue whether the agreement for sale stood determined is directly in issue in both the suits, it cannot be said that the matter in issue, meaning thereby the whole subject-matter of the Calcutta suit, is directly and substantially in issue in the Patna suit. He contends that unless there is the absolute identity of the whole subject-matter, it cannot be said that the matter in issue in the Calcutta suit is directly and substantially in issue in the Patna suit as held in National Institute of Mental Health & Neurosciences v. C. Parameshwar.

Held:  Absolute identity of the parties is not the consideration. Further, the subject matter in Patna suit is agreement for sale on basis of which specific performance was filed. The power of attorney originated from that agreement under clause 17. So the question of validity of the agreement is the whole controversy in the Patna suit. It was held that the same controversy is the subject matter of the Calcutta case where it is alleged that the power of attorney stood cancelled. The decision in the Patna suit will make the Calcutta suit absolutely useless and academic. Hence the application under section 10 of CPC should be allowed and the suit in Calcutta court be stayed. Also for maintaining application u/s.10 defendant in suit concerned need not first file his written statement s.10 application can be taken out even before filing the written statement.

You can grab notes on other topics of CPC here.

 

You can grab notes on other topics of CPC here.

• The word ‘Trial’ is of wide import. It includes all proceeding from the stage of an institution in a plaint, to the stage of final determination and decree by the court.
• Section 10 (res sub judice) only bars commencement of trial in two courts simultaneously but does not bar institution of suit or passing of interlocutory orders.
• In the context of summary suits (order 37) for the purposes of Section 10, a trial begins with the court granting leave to the defendant and court can proceed with issuing summons and passing judgment if the defendant hasn’t applied for leave of the court or has failed to get leave of the court.

You can grab notes on other topics of CPC here.

 

You can grab notes on other topics of CPC here.

FACTS:  Syed Ismail and Ibrahim, sons of Maqdoom, filed a suit impleading their parents and appellant/purchaser (Mahboob Sahab), for possession of the suit lands and for mesne profits from the appellant (Mahboob Sahab). The averments made in support thereof are that their father had executed a gift deed giving 15 acres 38 gunthas, jointly in their favour and their mother Smt. Chandi, the third defendant, who in her turn, orally gifted over her share to Syed Ismail in April 1958 at the time of his marriage. Being minors, their father -second defendant, while cultivating the lands on their behalf, had colluded with the Patwari and executed sale deed in favour of the appellant (Mahboob Sahab) On their becoming aware of the same, they filed the suit since their father had no right, title and interest therein to alienate the lands. The sales, therefore, in favour of the appellant were invalid, inoperative and do not bind them. The appellant (Mahboob Sahab) pleaded that Maqdoom had entered into an agreement of sale. When Maqdoom and Smt. Chandi refused to execute the sale deed, he filed a suit for specific performance which was decreed on a contest and the sale deed of the abovesaid property was executed and registered by the court. Ibrahim son of Maqdoom acted as an attesting witness of the said sale. Their parents had not given any gifts which were set up only to defraud the appellant and none of the elements of a valid gift was fulfilled.

It was brought out at the trial that in another suit filed by Syed Ismail on the foot of a possessory mortgage, the executability of another decree obtained by another creditor, was impugned, wherein by judgment and decree, the Court held that Maqdoom had jointly gifted the lands to the respondents and their mother by a registered gift deed.

The aforesaid finding was pleaded to operate as res judicata against the appellant (Mahboob Sahab) in the present suit.

Issue: Whether the finding in another suit operates as res judicata against co-defendants in present suit?

Holding: The court held that for the application of the doctrine of res judicata between co-defendants four conditions must be satisfied, namely, that (1) there must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide the conflict in order to give the reliefs which the plaintiff claims; (3) the question between the defendants must have been finally decided; and (4) the co-defendants were necessary or proper parties in the former suit.

Where the above four conditions did not exist the decree does not operate as res judicata.

The doctrine of res judicata must, however, be applied to co-defendants with great care and caution. The reason is that fraud is an extrinsic collateral act, which vitiates the most solemn proceedings of courts of justice. If a party obtains a decree from the court by practising fraud or collusion, be cannot be allowed to say that the matter is res judicata and cannot be re-opened. There can also be no question of res judicata in a case where signs of fraud or collusion are transparently pregnant or apparent from the facts on record. As found by the appellate court, Maqdoom was plying fraud upon his creditors by creating false oral gifts or spurious claims of mortgagees with a view to defraud them.

You can grab notes on other topics of CPC here.

 

You can grab notes on other topics of CPC here.

No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.

Facts: Wife of K by a settlement deed gave life estate to K and vested the remainder in favour of the Respondent (Narayan Nair). K, after the death of his wife, alienated the property by a registered sale deed in favour of N and C The respondent files a suit in the District Munsif court to restrain K from alienating the property and committing the acts of waste. Pending the suit the appellant purchased the suit property from N and C. The Trial Court decreed the suit and issued the permanent injunction. The appeal filed by K was dismissed. The appellant being not a party to the earlier suit, the respondent filed a second suit this time against K and the appellant for perpetual injunction restraining them from committing the acts of waste. The suit was decreed. Therein the validity of the appellant title was left open. The respondent filed a third suit in the court of subordinate judge for a declaration of his title and possession against the appellant. The trial court decreed the suit and granted mense profits. On appeal, it was confirmed. The second appeal was dismissed. Thus this appeal by special leave of the appellant.

Issue: Whether the decree of  District Munsif Court though of limited pecuniary jurisdiction would operate as res- judicata in the subsequent suit between the same parties?

Holding:  Court held that decree of District Munsif Court though of Limited pecuniary jurisdiction would operate as res- judicata in the subsequent suit between the same parties.

In a suit for an injunction when the title is in issue for the purpose of granting an injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata.

Therefore, even the decree founded on equitable relief in which the issue was directly and substantially in issue and decided, and attained finality, would operate as res judicata in a subsequent suit based on the title where the same issue directly and substantially arises between the parties.

You can grab notes on other topics of CPC here.

 

You can grab notes on other topics of CPC here.

Appeal- Preliminary objection raised by the appellant was rejected which was that the present proceedings initiated by the deceased first respondent on before the Assistant Charity Commissioner to declare three Rozas (situated at three places Ahmedabad, Broach and Surat) that were presently private into public trusts, were barred by res judicata.  In the present proceeding, Assistant Commissioner accepted preliminary objection of res judicata but Joint Charity Commissioner Gujarat did not accept the plea.  He set aside the order and remanded the matter for inquiry. The Division Bench of the Gujarat High Court in First Appeal affirmed it by learned Assistant Judge. Aggrieved by this, appellant has filed this appeal and has raised the same plea of res judicata in High Court.

It was held that Broach and Surat Rozas are private trusts and not public trusts, and were not res judicata. Later District Judge renumbered the case and held Roza of Ahmedabad to be a public trust. High Court held that Broach and Surat Rozas are private trusts and not public trusts, and was not res judicata. Later District Judge renumbered the case and held Roza of Ahmedabad to be a public trust.

Supreme court in a special leave petition held that the appeal failed and the Rozas of Broach and Surat remained to be private trusts as the respondent (sajjadanashin)who was in charge of them had obligations to fulfil, like a pious obligation and charitable purposes and maintenance of members of his family. It wouldn’t operate as res judicata.

You can grab notes on other topics of CPC here.

 

You can grab notes on other topics of CPC here.

Facts- In this case, the respondent filed a suit (before senior sub-judge) for the ejection of the appellant and also the arrears due to his non-payment of rent. The decision to the suit was given ex parte. The application under Order 9, Rule 13 C.P.C. to set aside the ex parte decree was dismissed and was confirmed on appeal and later in revision by the High Court. When the respondent came for execution of ejectment decision the appellant objected that according to him the Controller under the Act was the competent authority regarding claims for ejectment and by necessary implication, the civil Court was divested of jurisdiction to take cognisance and pass a decree for ejectment. That objection was overruled on a further revision to the High Court also failed. Simultaneously the appellant had also filed a writ petition under article 227 of the Constitution which was also dismissed. The plaintiff then filed an appeal by special leave to the Supreme Court.

Issue- Whether the doctrine of res judicata applies to a case of a decree of nullity?

Judgement-A question relating to jurisdiction of a court or interpretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a court. Therefore the doctrine of res judicata does not apply to a case of a decree of nullity. If the court inherently lacks jurisdiction consent cannot confer jurisdiction. Where certain statutory rights in welfare legislation are created, the doctrine of waiver also does not apply to a case of decree where the court inherently lacks jurisdiction. Therefore in the instant case, though the decree was passed and the jurisdiction of the court was gone into an issue at the ex parte trial, the decree thereunder is a nullity and does not bind the appellant. Therefore it does not operate as res judicata.

You can grab notes on other topics of CPC here.

 

You can grab notes on other topics of CPC here.

Facts- In this case, a landlord won a decree against the tenants for eviction from the property but was not able to get possession and further then the act of Calcutta Thikka Tenancy came into force. An application was made by tenants under section 28 of the same act saying they were thikka tenants and the Munsiff ruled they were not and decree was not rescinded. By the time the revision came to place the ordinance and amendment of act omitting section 28 had already come forward. The court saw §1 clause 2 to see whether application under §28 was still alive and answered in positive, held the appellants were Thikka tenants, okayed the revision application and remanded the case for Munsiff to decide according to law. Munsiff took back the earlier decree after remand. High court then rejected the landlord’s application against Munsiff’s orders and his question of applicability of §28 was unsuccessful as the judge held there was Res Judicata between the parties.

Issue- Does the fact that in an earlier stage a court has decided an interlocutory matter in one way and no appeal has been taken therefore or appeal did lie and a higher court at a later stage of the same litigation consider the same matter again?

Principle of Judgement- An interlocutory order which did not terminate the proceedings and which had not been appealed from either because no appeal was present or even though an appeal was present an appeal was not taken, could be challenged in an appeal from the final decree or order. Remand was an interlocutory judgment which did not terminate the proceedings and so the correctness of it can be challenged in an appeal from the final order.

You can grab notes on other topics of CPC here.

 

You can grab notes on other topics of CPC here.

Facts- The plaintiff (Moser Baer) took patent licensing for manufacturing discs from the defendant (Philips).  The agreement stated that in case of any disputes between the parties with regard to agreement (including any question regarding its existence, validity or termination) it shall be submitted to the competent courts of the Hague, the Netherlands, provided always that, in case Philips is the plaintiff, Philips may at its sole discretion submit any such dispute either to the competent courts in the venue of Licensee’s registered office, or to any of the competent courts in the Territory. Some dispute arose and first, the defendant backed down the defendant filed a suit in Hague against the plaintiff.

Through this application under Order 39 Rules 1 & 2 (Rules for giving Interim Injunctions), the plaintiff is seeking, as an interim injunction, to restrain the defendants from initiating any fresh proceedings against the plaintiff in a foreign court and from continuing with the suit filed by the defendant at The Hague, The Netherlands.

Issue- Whether injunction can be granted keeping in view the facts of the case.

Judgement- It was held that the court granting an anti-suit injunction must otherwise have jurisdiction over the matter. Similarly, the court rejecting a matter on the principle of forum non conveniens, must otherwise also have jurisdiction to entertain the same. It came to be established that present court had no jurisdiction over the matter and moreover The Hague was the court of preferred jurisdiction in respect of the defendant who filed a suit there. Also, there was no essential problem that the anti-suit injunction could be given as plaintiff didn’t establish any reason such as not being able to contest suit in Hague.

The parties may agree to have their disputes resolved by a foreign court which may be a neutral court or a court of choice creating exclusive or non-exclusive jurisdiction in it although such court may not otherwise have jurisdiction. This settled position eliminates any argument that may be advanced claiming that the courts of The Hague, the Netherlands, do not have jurisdiction and the parties could not by agreement confer jurisdiction on it.

You can grab notes on other topics of CPC here.