LANDMARK CASES OF CPC

1. LUCY KOCHUVAREED V. P. MARIAPPA GOUNDER AND ORS.

(Final/Prelim Decree + mesne profits – S.2(2) & S.2(12))

Q : Examine whether the decree is preliminary or final in the following case:—

‘A’ sues ‘B’ for recovery of possession of certain land and for mesne profits and a
decree is passed in A’s favour.

22nd Bihar Judicial Service Exam. 1986

State Bank Law Officer Exam. (Based on memory).

Ans: The decree passed in A’s favour is partly preliminary and partly final—Order
20,Rule 12 (Decree for possession and mesne profits) and Supreme Court in Lucy v.
Mariappa, AIR 1979 SC 1214 (1220).

Reasons: Section 2(2) gives the definition of the term ‘Decree’. In this respect it is
notable that the concluding part of ‘Explanation’ attached to Section 2(2) makes it clear
that a decree may be partly preliminary and partly final.

The question of a decree which is partly preliminary and partly final arises only when the
court decides two issues by only one decree.

It is also notable that in case of suit of recovery of possession of immovable property

(Land) with mesne profits generally the decree is passed under Order 20, Rule 12 for
recovery of possession of the property with a direction to make an enquiry regarding
mesne profits, thus, in such a case the court decides two issues by one decree. In this case
the decree for the possession of immovable property is final and enquiry regarding mesne
profits is preliminary.

The Supreme Court of India also, in famous case of Lucy v. Mariappa referred above,
held that in case of the suit for recovery of the possession of immovable property with
mesne profits when the court decrees possession of a property and also directs the
enquiry into mesne profits, the former part of decree is final, while the latter part is only
preliminary because the final decree for mesne profits can be drawn only after enquiry
and the amount due is ascertained. In such a case, even though the decree is only one, it is
partly preliminary and partly final.

From the above discussions (Order 20, Rule 12 and decision of Supreme Court in Lucy v.
Mariappa) it is clear that in the given case the decree passed by court in favour of ‘A’ for
recovery of possession of land with mesne profits is partly preliminary and partly final.

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 However, it is notable that if the future mesne profits can be ascertained without directing
an enquiry in this respect, a final decree may be passed directly without passing a
preliminary decree. That’s why in Ganeshi v. Snehalata, AIR 1947 C 68, it was held that
if future mesne profits can be ascertained without the need of further enquiry a
preliminary decree need not be passed. But it is a rare and exceptional circumstance
which occurs in a case of suit for recovery of possession of immovable property with
mesne profits. Thus, as a general rule in case of a suit for recovery of possession of
immovable property with mesne profits, a preliminary decree is passed to make an
enquiry regarding ascertainment of the amount of mesne profit along with final decree of
recovery of possession of immovable property.

Note: (1) See Order 20, Rule 12 for more details.

(2) Mesne profits of property means those profits which the person in wrongful
possession of such property actually received or might with ordinary diligence have
received therefrom, together with interest on such profits, but shall not include profits due
to improvements made by the person in wrongful possession—-Section 2(12) of Civil
Procedure Code.

2. GUNDAJI SATWAJI SHINDE V. RAM CHANDRA BHIKAJI JOSHI

(Jurisdiction of Civil Courts – S.9)

Plaintiff GUNDAJI SATWAJI SHINDE 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. Also, according to the Tenancy Act, such an issue was within the
exclusive jurisdiction of the Mamlatadar (competent authority set up under the Tenancy
Act).
By the appeal, appellant challenged the judgment of the High Court confirming the
jurisdiction of the Civil Court to decide whether the person is an agriculturist or not, as
held by the trial court. The appellant sued for the specific performance of the contract for
sale of the agricultural land governed under the provisions of the Bombay Tenancy and
Agricultural Lands Act, 1948 (hereinafter referred as the Tenancy act) in the Civil Court.

The defendant RAMCHANDRA BHIKAJI JOSHI resisted the suit contending that the
plaintiff being not an agriculturist and thus, barred from purchasing the land under S. 63
of the Tenancy Act. In return, appellant contended S. 63 as inoperative on the basis of the
S. 70(a) read with S. 85 and S. 85A of the Tenancy Act, according to which the issue
would have to be referred to the Mamlatdar for decision and the Civil Court would have
no jurisdiction to decide the suit. The trial court dismissed the suit on the ground that
Civil Court had jurisdiction to decide incidental or subsidiary issue arising out of the
main suit. The High Court confirmed the trial court order. Thus appeal was raised as to
decide above incidental issue.
The issues were:
1. Whether the plaintiff is an agriculturist or not?

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 2. Whether 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.
JUDGMENT: It is held by the court that 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. (Refer to Sec. 9 of CPC – “……expressly barred)
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.

3. P.M.A. METROPOLITAN V. MORAN MAR MARTHOMA

(Scope of Section 9)

"9. Courts to try all civil suits unless barred. The Courts shall (subject to the provisions
herein contained) have jurisdiction to try all suits of a civil nature excepting suits of
which their cognizance is either expressly or impliedly barred. Explanation I-A suit in
which the right to property or to an office is contested is a suit of a civil nature,
notwithstanding that such right may depend entirely on the decision of questions as to
religious rites or ceremonies.
Explanation II - For the purposes of this section, it is immaterial whether or not any fees
are attached to the office referred to in Explanation I - or whether or no such office is
attached to a particular place."

One of the basic principles of law is that every right has a remedy- Ubi jus ibi remedium
is the well-known maxim. Every civil suit is cognizable unless it is barred, 'there is an
inherent right in every person to bring a suit of a civil nature and unless the suit is barred
by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit,
howsoever frivolous the claim, that the law confers no such right to sue' Smt. Ganga Bai
vs. Vijay Kumar & Ors., AIR 1974 SC 1126.

The expansive nature of the Section is demonstrated by use of phraseology both positive
and negative. The earlier part opens the door widely and latter debars entry to only those
which are expressly or impliedly barred. The two explanations, one existing from
inception and later added in 1976 bring out clearly the legislative intention of extending
operation of the Section to such religious matters where right to property or office is
involved irrespective of whether any fee is attached to the office or not. The language
used is simple but explicit and clear. It is structured on the basic principle of a civilised
jurisprudence that absence of machinery for enforcement of right renders it nugatory. The
heading which is normally key to the Section brings out unequivocally that all civil suits
are cognizable unless barred. What is meant by it is explained further by widening the
ambit of the Section by use of the word `shall' and the expression, `all suits of a civil
nature' unless `expressly of impliedly barred'.

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 Each word and expression casts an obligation on the court to exercise jurisdiction for
enforcement of right. The word `shall' makes it mandatory. No court can refuse to
entertain a suit if it is of description mentioned in the Section. That is amplified by use of
`expression, `all suits of civil nature'. The word `civil' according to dictionary means,
`relating to the citizen as an individual; civil rights'. In Black's Legal Dictionary it is
defined as, `relating to provide rights and remedies sought by civil actions as contrasted
with criminal proceedings'. In law it is understood as an antonym of criminal.

Are religious rights, for instance right to worship in a religious place, entry in a
temple, administration of religious shrines for instance a temple, mosque or a
church are rights of civil nature? The answer is given by Explanation I. It obviates any
ambiguity by making it clear that where even right to an office is contested then it would
be a suit of a civil nature even though that right may entirely depend on the decision of a
question as to religious rites or ceremonies. Explanation II widens it further to even those
offices to which no fees are attached. Therefore, it was visualized from the inception that
a suit in which the right to property or religious office was involved it would be a suit of
civil nature.

4. SAMIR SAJJAD AHMED V. MOHAMMED AYUB

(Section 9)

A bare reading of the aforesaid provision reveals that in order to ascertain as to whether a
civil Court has jurisdiction to try a suit, the first question, which needs to be determined
by the Court is, as to whether the suit is of civil nature. Normally, suits can be bifurcated
in two categories; viz. first the suits which are of civil nature; and the suits which are not
of civil nature. The suits falling under the former category can be tried and decided by all
civil Courts, unless expressly barred; whereas the suits falling under the latter category
cannot be tried by the civil Courts.

The main question which arises for the Court's consideration is, which are the suits of
civil nature? The word "civil" has not been defined in the Code of Civil Procedure,
however the dictionaries define it as "pertaining to private rights and individual remedies
of a citizen as distinguished from criminal or political matters". The expression "civil
nature" means the rights vested in the citizen falling within the domain of private law and
not of public law.

The Court referred to P.M.A Metropolitan case and Smt. Ganga Bai case discussing
about the expansive nature of the Section and that every civil suit is cognizable unless
impliedly or expressly barred.

“Religion is the belief which binds spiritual nature of men to super-natural being”. It
includes worship, belief, faith, devotion etc. and extends to rituals. Religious right is the
right of a person believing in a particular faith to practice it, preach it and profess it. It is
civil in nature. The dispute about the religious office is a civil dispute as it involves
disputes relating to rights which may be religious in nature but are civil in
consequence. Civil wrong is explained by Salmond as a private wrong. He has extracted

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 Blackstone who has described private wrongs as, 'infringement or privation of the private
or civil rights belonging to individuals, considered as individuals, and are thereupon
frequently termed civil injuries'. Any infringement with a right as a member of any
religious order is violative of civil wrong. This is the letter and spirit of Explanation I to
Section 9.

The Supreme Court has also observed in the said judgment that honours shown or
precedence given to religious dignitaries, while attending religious ceremonies in a
temple cannot be placed on a higher pedestal than the religious rites or ceremonies,
as they are integral part of such rites or ceremonies. Prima facie honours, such as who is
to stand in the 'ghoshti', in what place; who is to get the tulasi; etc., in what order; and all
other like questions cannot be considered to be a part of the remuneration or perquisites
attached to an office, for they are only tokens of welcome of an honoured guest within
the precincts of a temple.

In case of Nar Hari Sastri & Ors., Vs. Shri Badrinath Temple Committee, Hon'ble
Supreme Court has given recognition to right of entering the temple and worship,
wherein the question involved was about the right of entry into public temple for the
purpose of facilitating worship or darshan. The basic question involved therein was
whether pandas to Badrinath temple can enter the temple with their Yajmaan and accept
gifts etc. from them. Hon'ble Supreme Court held that such a suit was cognizable,
holding the plaintiff's right to enter the temple to be a civil right.

5. INDIAN BANK V. MAHARASHTRA STATE COOPERATIVE MARKETING

FEDERATION LTD.
(Doctrine of Res Sub Judice- S.10)

FACTS:
Here, the respondent-Federation applied to the appellant Bank to open an Irrevocable
Letter of Credit. Pursuant to that, the appellant forwarded the same to the respondent for
their acceptance. Later, the said amount of credit has become irrecoverable. The appellant
filed the summary suit before the High Court under Order 37 of CPC. The respondent
took out Notice of Motion seeking stay of the summary suit on the ground that it has
already instituted a suit against the bank for recovery of outstanding credit prior to the
filing of the summary suit but same has been disposed and dismissed by Single judge
bench. Aggrieved by the order, respondent filed appeal before Division Bench and
consequently, stayed summary suit on the ground the word “trial” in S. 10 has been used
in a wider sense and applied to summary suits. In result, the impugned order of the
Division Bench was challenged in the Supreme Court.

ISSUE:
Whether the bar to proceed with the trial of subsequently instituted suit, contained in
Section 10 of the CPC, 1908(hereinafter referred to as the ‘Code’) is applicable to
summary suit filed under Order 37 of the Code?

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 JUDGMENT:
According to the learned counsel for appellant, the purpose behind the introducing
separate provision of summary suits would be frustrated if S. 10 applied to the suits of
summary nature.

The provision under S. 10 of the CPC disallows the court from proceeding with the trial
under which the matter in issue is also directly and substantially in issue under a
previously instituted suit provided other conditions mentioned in the section are also
satisfied. It is not a bar to the institution of a suit. It only prevents court of concurrent
jurisdiction from simultaneously trying two parallel suits and to avoid inconsistent
findings on the matters in issue.

Considering the objects of S. 10 and Order 37 of the CPC, Hon’ble Court is of opinion
that the word ‘trial’ in S.10 in the background of a summary suit means all proceedings
straight from filing of the plaint till the final judgment and decree and should be
interpreted keeping in mind the object and nature of that provision.

Normally, in a summary suit the ‘trial’ really begins after the court or the judge grants
leave to the defendant to contest the suit. It cannot be interpreted to mean the entire
proceedings starting with the institution of the suit by lodging a plaint. Therefore, the
court dealing under Order 37 can proceed up to the stage of hearing the summons for
judgment and passing the judgment in favour of the plaintiff only when, firstly, the
defendant has not applied for leave to defend or if such application has been made and
refused; or secondly, the defendant who is permitted to defend fails to comply with the
conditions on which leave to defend is granted. Hon’ble Court also marked error for
making improper interpretation of term “trial” by Division Bench.

Hence, Hon’ble Court set aside the impugned judgment of the Division bench and
allowed the appeal, restoring order passed by the learned Single Judge of High Court.

HELD:
Thus it was held that, bar of S. 10 of the CPC would not apply to any subsequent matter
tried summarily under Order 37 of the CPC.

6. IFTIKHAR AHMED V. SYED MEHARBAN ALI

(Doctrine of Res Judicata – S.11)

FACTS:
It was an appeal, by special leave, against the order of Allahabad High Court setting aside
the decree passed by the District Judge, in appeal, setting aside an award passed by the
arbitrator appointed under the Consolidation proceeding. Here, dispute between the
appellants and the respondents, as to bhumidar of the property, was referred to an
arbitrator by the Civil Judge under Consolidation proceeding. The arbitrator, relying upon

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 an earlier judgment of the High Court instituted by the appellant’s predecessor and the
present respondents, as operative res- judicata, held that the respondents had no title as
bhumidar and appellant’s predecessor alone was entitled to the properties. Aggrieved by
the award passed, respondents filed objections before learned II Civil Judge, who set
aside the award passed earlier and held judgment as res judicata inoperative. Thus, High
Court of Allahabad reversing the order of District Judge favoring appellants confirmed
the award.

ISSUE: Whether or not suit is barred by the principles of Res Judicata?

JUDGMENT: On behalf of the appellants, it was argued that award proceeded on the
basis that the judgment of the High Court did not operate as res judicata in respect of the
title of the parties to the properties, and therefore, the decision of the District Judge
setting aside the award was correct. The Hon’ble Court noted that to operate judgment as
res judicata between co-defendants, it is necessary to establish (1) conflict of interest
between the co-defendants, (2) to decide the conflict in order to give relief to the plaintiff,
and (3) the court actually decided the question. The Court relied upon the case Board in
Sheoparsan Singh v. Ramanandan Prasad Narayan Singh [A.I.R. 1916 P.C. 78],
wherein it was held that the rule of res judicata “while founded on ancient precedent is
dictated by a wisdom which is for all time” and that the application of the rule by the
courts “should be influenced by no technical considerations of form, but by matter of
substance within the limits, allowed by law. The Supreme Court while considering
question of Res Judicata in Chandu Lal v. Khalilur Rahman [A.I.R. (1950) P.C. 17]
originate no reason why a previous decision should not operate as res judicata between
co-plaintiffs if all the above mention conditions are mutatis mutandis satisfied. On the
facts and circumstances of the case, appeal allowed, restoring the award passed by the
first arbitrator.

HELD: Thus held, that the earlier judgment of the High Court would operate as Res
Judicata as regards the title of the parties to the properties.

7. STATE OF U.P. V. NAWAB HUSSAIN

(Res Judicata and constructive Res Judicata- S.11)

Rule of constructive res judicata is engrafted in explanation IV to section 11 of the

Code is an artificial form of res judicata and provides that if a plea could have been taken
by a party in a proceeding between him and his opponent, he should not be permitted to
take that plea against the same party in a subsequent proceeding with reference to the
same subject matter. Its object is to compel the plaintiff or the defendant to put forward
all grounds of attack or defence that are available and of which he is aware at the time
when the said former suit is file or written statement is submitted. The rule of
constructive res judicata was first applied in the State of U.P v. Nawab Hussain AIR
1977 SC 1680.

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 FACTS: The respondent, a sub-inspector of Police, was dismissed from service by
Deputy Inspector-General of Police on corruption charges. The appeal against dismissal
order was dismissed. He then filed a writ petition in the Allahabad High Court quashing
the disciplinary proceedings on the ground that he was not offered a reasonable
opportunity to meet the allegations against him and the action taken against him was mala
fide. The writ was also dismissed.
The respondent then filed a suit in the court of civil judge in which he challenged the
dismissal order on the ground that he had been appointed by the sub inspector -General of
Police and that DIG was not competent to dismiss him by virtue of Article 311(1) of the
Constitution.
The state of UP traversed the suit on the ground that the suit was barred by res judicata
as “all the matters in issue in this case had been raised or ought to have been raised in
both in the writ petition and special appeal.”
The Trial Court dismissed the suit and the District Judge upheld the trial Court’s
judgment and dismissed the appeal. The High Court was of the view that the suit was not
barred by the principle of constructive res judicata. It was appealed before the Supreme
Court.

ISSUES RAISED:

(i) Whether the second suit filed by the respondent was barred by the principle of
constructive res judicata on the ground that a plea which might and ought to have been
raised in the earlier proceeding but was not so raised therein? , and

(ii) Whether the principle of constructive res judicata also applies to the writ petition
under Article 32 and 226?

DECISION:

Supreme Court allowed the appeal and set aside the judgment of High Court. It observed
that:-

“When any matter which might and ought to have been made a ground of defence or
attack in a former proceeding but was not so made, then such a matter in the eye of law to
avoid multiplicity of litigation and to bring finality in it, is deemed to have bee to have
been constructively and therefore, is taken as decided.”

The principle of constructive res judicata was an important plea which was within the
knowledge of the respondent and could well have been taken in the writ petition, but he
contended himself by raising the other pleas that he was not afforded a reasonable
opportunity to meet the case against him in the departmental inquiry and that the action
taken against him was mala fide. It was, therefore, not permissible for him to challenge
his dismissal, in the subsequent suit, on the other ground that he had been dismissed by
an authority subordinate to that by which he was appointed. That was clearly barred by
the principle of constructive res judicata and the High Court committed an error of law in

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deciding the objection regarding the bar of res judicata, it will not be necessary for us to
examine the other point.

Gajendragadkar J. observed that the rule of constructive res judicata “in a sense a
somewhat technical artificial rule prescribed by the code. This rule postulates that if a
plea could have been taken by a party in a proceeding between him and his opponent, he
would not be permitted to take that plea against the same party in a subsequent
proceeding which is based on the same cause of action. It was categorically held that the
principle of constructive res Judicata was applicable to writ petitions also.”

Finally Court held that in this case the respondent ought to have taken all the grounds and
that it was an important plea which was within the knowledge of the respondent and
could well have been taken in the writ petition. It was therefore, not permissible for him
challenge his dismissal, in the subsequent suit, on the other ground that he had been
dismissed by an authority subordinate to that by which he was appointed. That was
clearly barred by the principle of constructive res judicata.

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