[Cites 4, Cited by 0]
Karnataka High Court
Mr A V Nagaraj vs Smt Kantamma on 18 February, 2026
Author: R Devdas
Bench: R Devdas
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
CIVIL REVISION PETITION NO.645 OF 2024
BETWEEN:
1. MR A V NAGARAJ
S/O LATE VENUGOPAL NAIDU,
AGED ABOUT 40 YEARS,
R/OF NO.130/17, 30TH MAIN,
BSK 3RD STAGE,
BANGALORE-560008.
SRI R K VENKATA KRISHNA
SINCE DEAD BY HIS LRS.,
2. ANANDALAKSHMI,
W/O LATE R K VENKATA KRISHNA,
AGED ABOUT 50 YEARS,
3. SMT. ROOPA
D/O LATE R K VENKATA KRISHNA,
AGED ABOUT 30 YEARS,
4. DEEPA
D/O LATE R K VENKATA KRISHNA,
AGED ABOUT 28 YEARS,
PETITIONER NO.2 TO 4 ARE
R/AT NO.40, MADHANAGARA,
BANGALORE-560001.
...PETITIONERS
(BY SRI. PHANIRAJ KASHYAP., ADVOCATE)
-2-
AND
SMT KANTAMMA
SINCE DEAD BY HER LRS
G N NANJAPPA,
SINCE DEAD BY HIS LRS,
ALREADY ON RECORD R2 TO R5
1. G N JANARDHANA
S/O MAREGOWDARA NANJAPPA,
AGED ABOUT 45 YEARS,
2. SOMASHEKAR G N
S/O MAREGOWDARA NANJAPPA,
AGED ABOUT 42 YEARS,
3. G N RAVINDAR KUMAR
S/O MAREGOWDARA NANJAPPA,
AGED ABOUT 39 YEARS,
4. SMT. MALAKUMARI
D/O MAREGOWDARA NANJAPPA,
W/O B.S.CHANDRASHEKAR,
AGED ABOUT 37 YEARS,
RESPONDENTS 1 TO 4 ARE
R/AT NO.245/3, NANJAPPA FARM HOUSE,
GUNJUR BANGALORE EAST TALUK,
BANGALORE-560027.
SMT NAGARATHNA
SINCE DEAD BY HER LRS
5. NAGARAJA
S/O NOT KNOWN TO PLAINTIFF,
AGED ABOUT 50 YEARS,
R/AT NO.20,
RAMANAGARA COURT COMPLEX,
COURT STREET, RAMANAGAR,
RAMANAGAR-562159.
-3-
6. SMT JYOTHI
D/O LATE LAKSHMAIAH,
AGED ABOUT 35 YEARS,
7. SRI SRINIVAS
S/O LATE LAKSHMAIAH,
AGED ABOUT 33 YEARS,
8. SMT. ROOPA
D/O LATE LAKSHMAIAH,
AGED ABOUT 31 YEARS,
9. SMT. SARASWATHAMMA
W/O THIMMAPPA,
AGED ABOUT 53 YEARS,
10 . SRI KRISHNA
S/O LATE KARIYAPPA,
AGED ABOUT 57 YEARS,
RESPONDENTS NO.6 TO 10 ARE
R/AT NO. LAKKANNA BUILDINGS,
KARIYANNA VATARA,
NAGASANDRA, BASAVANAGUDI,
BANGALORE-560028.
SRI KUPENDRA
SINCE DEAD BY HER LRS
11 . K RAMESH
S/O LATE KUPENDRA,
AGED ABOUT 32 YEARS,
NO.2, 1ST MAIN, LAKKANNA BUILDING,
KARIYANNA VATARA, NAGASANDRA,
BASAVANAGUDI,
BANGALORE-560028.
12 . SMT SHIVAMMA
W/O LATE K KUPENDRA,
AGED ABOUT 50 YEARS,
-4-
13 . K MURTHY
S/O LATE K KUPENDRA,
AGED ABOUT 30 YEARS,
14 . KUMARI NETHRA
D/O LATE K KUPENDRA,
AGED ABOUT 25 YEARS,
RESPONDENT NO.12 TO 14 ARE
R/AT CHEMBENAHALLI VILLAGE,
DOMSANDRA POST, ANEKAL TALUK,
BANGALORE-560087.
15 . SMT. JAYAMMA
W/O LATE KUPENDRA,
AGED ABOUT 50 YEARS,
16 . K KIRAN
S/O LATE KUPENDRA,
AGED ABOUT 28 YEARS,
RESPONDENT NO.15 & 16 ARE
R/AT NO.2, LAKKANNA BUILDING,
KARIANNA VATARA,
NAGASANDRA BASAVANAGUDI,
BANGALORE-560028.
17 . M K CHANDRA SHEKAR
S/O LATE CHANNAVEERAIAH,
AGED ABOUT 75 YEARS,
R/AT NO. 1540, 20TH CROSS,
BSK II STAGE,
BANGALORE-560070
18 . SMT. NALINI RAM
W/O LATE RAMASWAMY NAIDU,
AGED ABOUT 55 YEARS,
R/AT 43, KATRIGUPPE,
UTTARAHALLI HOBLI,
BANGALORE-560085.
-5-
19 . KRISHNAPPA NAIDU
S/O DORESWAMY NAIDU,
AGED ABOUT 58 YEARS,
R/AT NO.1, KATRIGUPPE,
UTTARAHALLI HOBLI,
BANGALORE-560085.
20 . BHASKAR
S/O D MUNIRATHNAM NAIDU,
AGED ABOUT 52 YEARS,
R/AT NO.5, KATRIGUPPE,
UTTARAHALLI HOBLI,
BANGALORE-560085.
21 . M VINOD
S/O D MUNIRATHNAM NAIDU,
AGED ABOUT 50 YEARS,
R/AT NO.6, KATRIGUPPE,
UTTARAHALLI HOBLI,
BANGALORE-560085.
22 . SMT. VIJAYA
W/O CHITTI BABU,
AGED ABOUT 48 YEARS,
R/AT POGULUR VILLAGE,
CHAMBADA POST,
UDIYATHAM TALUK,
N A DISTRICT, TAMIL NADU.
23 . G KUMARASWMAY
S/O G MARKANDA NAIDU
AGED ABOUT 44 YEARS
R/AT NO 15 & 16 NO. 184,
12TH CROSS, II STAGE WOC
MAHALAKSHMIPURAM
BANGALORE- 560086.
A VENUGOPAL NAIDU
SINCE DEAD BY HER LRS
24 . PADMALATHA
D/O LATE A VENUGOPAL NAIDU
-6-
AGED ABOUT 45 YEARS
25 . ASHALATHA
D/O LATE A VENUGOPAL NAIDU
AGED ABOUT 43 YEARS
26 . SRILAKSHMI
D/O LATE A VENUGOPAL NAIDU
AGED ABOUT 41 YEARS
27 . BINDUSHREE
D/O LATE A VENUGOPAL NAIDU
AGED ABOUT 38 YEARS
28 . SMT RADHA VENUGOPAL
W/O A. VENUGOPAL NAIDU
AGED ABOUT 64 YEARS
29 . SMT ASHA LATHA
W/O DR A DARANARASAIAH NAIDU
AGED ABOUT 32 YEARS
RESPONDENT NO.24 TO 29 ARE
R/AT NO. 136/17, 30TH MAIN ROAD
BANASHANKARI III STAGE
BANGALORE-560085.
30 . A NARASIMHALU NAIDU
S/O LATE CHANGAMMA NAIDU
AGED ABOUT 64 YEARS
R/AT NO. 17/14, 6TH CROSS
NEAR 80 FEET ROAD
BANASHANKARI III STAGE
BANGALORE-560085.
31 . S RAJAREDDY
S/O LATE SHIVA REDDY
AGED ABOUT 48 YEARS
R/AT 9, 5TH CROSS, 6TH MAIN
BEHIND TEACHERS COLONY
BSK III STAGE BANGALORE-560085.
-7-
32 . K MUNIRATHAM NAIDU
S/O LATE DORESWAMY NAIDU
AGED ABOUT 65 YEARS
R/AT NO. 1176, 12TH B MAIN
HAL II STAGE INDIRANAGAR
BANGALORE-560038.
....RESPONDENTS
(BY SRI.G. B. MANJUNATHA., ADVOCATE FOR R2 TO R5
V/O DTD. 19.11.2025 NOTICE TO R6 TO R32 IS D/W)
THIS CRP FILED UNDER SEC.115 OF CPC., PRAYING THIS
COURT TO SET ASIDE THE ORDER DATED 14.08.2024 PASSED
IN OS NO. 4866/2010 ON PRELIMINARY ISSUE NO.5 ON THE
FILE OF IX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU AND CONSEQUENTLY DISMISS THE SUIT FILED BY
THE PLAINTIFF AS IT IS BARRED BY PRINCIPLES OF RES-
JUDICATA.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
21.01.2026 AND COMING ON FOR PRONOUNCEMENT OF
ORDERS, THIS DAY, THIS COURT MADE THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE R DEVDAS
CAV ORDER
(PER: HON'BLE MR JUSTICE R DEVDAS)
This Civil Revision Petition is filed under Section 115
of the Code of Civil Procedure, 1908, at the hands of
defendants No.19 and 9 (a) to (c) in O.S.No.4866/2010,
aggrieved of the impugned order dated 14.08.2024
whereby the preliminary issue 'whether the suit of the
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plaintiff is hit by principles of res judicata' was considered
and dismissed.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. Facts in brief are that the plaintiff Smt.Kantamma
filed O.S.No.4866/2010 seeking a judgment and decree in
favour of the plaintiff for partition and separate possession
of 1/5th share in the suit schedule properties. Written
statement was filed by the defendants-petitioners herein
contending inter alia that the very same plaintiff had filed
O.S.No.929/1991 before the City Civil Court, Bengaluru,
seeking the very same relief of partition and separate
possession arraying all the other family members as
defendants. The suit was instituted on 11.02.1991 and a
judgment was pronounced on 17.07.2003 dismissing the
suit holding that the plaintiff who pleaded that the plaint
schedule properties are acquired by her grandfather
Lakkanna and her father Sri Kariyappa (defendant No.1 in
the suit), but the plaintiff also admitted the fact that in a
family partition effected on 20.09.1959, the suit schedule
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properties were partitioned and shares were allotted to the
grandchildren of Sri Lakkanna who are none other than
defendants No.2 to 5 in the suit. Therefore, it was held
that during the lifetime of the plaintiff's father viz.,
defendant No.1, the plaintiff has no right to seek partition.
4. After issues were framed and one of the issues
being, 'whether the suit of the plaintiff is hit by principles
of res judicata as contended by 9th defendant?", at the
instance of defendants No.9 and 19, the said issue was
taken up as preliminary issue. Further, since the learned
Judge of the City Civil Court held the preliminary issue in
favour of the plaintiff, defendants No.9 and 19 are before
this Court, assailing the said order dated 14.08.2024.
5. Learned Counsel for defendants No.9 and 19
submits that the learned Judge of the City Civil Court has
fallen in grave error while rendering a finding that the
judgment and decree passed in the earlier suit was not
adjudicated, since no evidence was recorded and no
documents were marked and therefore, the plaintiff was
denied the right of audi alteram partem in
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O.S.No.929/1991. Learned Counsel submits that such a
finding could not have been rendered by the learned
Judge, since the judgment and decree passed in the earlier
suit is a decree in law and if the plaintiff was aggrieved of
such a decision, the plaintiff should have raised a
challenge to the said decision. Learned Counsel submits
that even if the plaintiff had so contended before the
learned Judge of the City Civil Court, the learned Judge
could not have accepted the said contention and the
learned Judge is precluded from rendering such a finding
which is clearly opposed to the settled position of law.
6. In this regard, learned Counsel for defendants has
placed reliance on two decisions of the Apex Court viz.,
K.Arumuga Velaiah Vs. P.R.Ramasamy and Another1
and Jamia Masjid Vs. Sri K.V.Rudrappa (Since Dead)
By Legal Representatives And Others2. Learned
Counsel submitted that in K.Arumuga Velaiah the Apex
Court has held that while determining the application of
the rule of res judicata the Court is not concerned with the
1
(2022) 3 SCC 757
2
(2022) 9 SCC 225
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correctness or otherwise of the earlier judgment. The
matter in issue, if it is one purely of fact, decided in the
earlier proceeding by a competent court must in a
subsequent litigation between the same parties be
regarded as finally decided and cannot be reopened. It
was also noticed that in another case in State of W.B. Vs.
Hemant Kumar Bhattacharjee3 the Apex Court had
held that even a wrong decision can be superseded only
through appeals to higher tribunals or courts or through
review, if provided by law. Further, since the learned
Counsel for the plaintiff had raised an issue as to whether
the application of the rule of res judicata, even if raised as
an issue, could be taken up as a preliminary issue, learned
Counsel for the defendants placed reliance on Jamia
Masjid (supra) where it was held, 'we are unable to
accept the submission of the appellants that res judicata
can never be decided as a preliminary issue......'.
7. Per contra, learned Counsel for the plaintiff
contended that although it is true that issues were framed
3
AIR 1966 SC 1061
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by the Trial Court based on the pleadings of the parties,
nevertheless without there being any application filed by
the defendants, the Trial Court has suo motu taken up the
issue regarding res judicata as preliminary issue. It was
further contended that no opportunity was given to the
plaintiff to adduce evidence regarding the preliminary
issue. While pointing out to the order sheet maintained by
the Trial Court, it was contended that the plaintiff was not
called upon to adduce evidence and on the other hand, the
Trial Court recorded the evidence of defendant No.19 Sri
Nagaraj as PW.1 and the learned Counsel for the plaintiff
was asked to cross-examine the said witness. Learned
Counsel would also place reliance on Ramesh B.Desai
and Others Vs. Bipin Vadilal Mehta and Others4,
where it was held that though there has been a slight
amendment in the language of Order XIV Rule 2 CPC by
the Amending Act, 1976, but the principle enunciated in
several decisions of the Apex Court still holds good and
there can be no departure from the principle that the
Court confers no jurisdiction upon the Court to try a suit
4
AIR 2006 SC 3672
- 13 -
on mixed issue of law and fact as a preliminary issue and
where the decision on issue of law depends upon decision
of fact, it cannot be tried as a preliminary issue. The
learned Counsel would therefore submit that in the first
place, the Trial Court fell in error in taking up the issue of
res judicata as a preliminary issue. It is submitted that
the issue is one of mixed question of law and facts and
therefore, such an issue has to be considered only after a
full-fledged trial. The learned Counsel would therefore
submit that even if this Court would come to a conclusion
that the impugned order is not sustainable, nevertheless
the said issue should be kept open to be decided along
with all the other issues.
8. Heard the learned Counsels on both the sides and
perused the petition papers.
9. Since the learned Counsel for the plaintiff has
contended that the issue regarding res judicata being
mixed question of law and facts, could not be considered
as a preliminary issue, this Court deems it appropriate to
consider the said contention. It would be relevant to
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notice the decision of the larger Bench of the Apex Court
in the case of Jamia Masjid (supra) where, while
analyzing such question, the Apex Court analyzed many
other earlier decisions and concluded as follows:
"66. In view of the discussion above, we summarise our
findings below:
66.1. Issues that arise in a subsequent suit may either
be questions of fact or of law or mixed questions of law
and fact. An alteration in the circumstances after the
decision in the first suit, will require a trial for the
determination of the plea of res judicata if there arises
a new fact which has to be proved. However, the plea of
res judicata may in an appropriate case be determined
as a preliminary issue when neither a disputed question
of fact nor a mixed question of law or fact has to be
adjudicated for resolving it."
10. Having regard to the law settled by the Hon'ble
Supreme Court, it is clear that since the earlier suit filed
by the plaintiff in O.S.No.929/1991 was also a suit for
partition and separate possession and the present suit is
also a suit for partition and separate possession, it can be
safely concluded that there are no new set of facts or
alteration in the position of law which requires
consideration in the second suit. Therefore, the contention
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of the learned Counsel for the plaintiff that the issue of res
judicata could not have been taken as a preliminary issue,
is considered and rejected.
11. However, lots are required to be said about the
finding rendered by the learned Judge of the City Civil
Court. The learned Judge has stated after perusing the
judgment and decree passed in O.S.No.929/1991 dated
17.07.2003, that the plaintiff has not adduced any oral or
documentary evidence although written statement was
filed by defendant No.1-Kariyappa, the father of the
plaintiff and written statements were also filed by the
other defendants, the plaintiff was not examined as a
witness. Therefore, the Trial Judge has opined that there
was no adjudication of the case as there was no evidence
taken, no documents were marked and no hearing took
place, there was no audi altram partem in
O.S.No.929/1991. The learned Judge, while placing
reliance on a decision of the Apex Court in the case of
State of Uttar Pradesh And Another Vs. Jagdish
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Sharan Agrawal And Others5, arrived at a conclusion
that the suit in O.S.No.929/1991 was not decided on
merit. It is opined that the learned Presiding Officer
pronounced the judgment upon the pleadings of both the
parties. It was therefore held that when the former case
was not adjudicated, no evidence was recorded, no
documents were marked, nor parties were heard,
therefore, the decision cannot be taken as rendered on
merits of the case and therefore, it was concluded that the
present suit is not hit by the principles of res judicata.
12. In the considered opinion of this Court, this
finding and decision of the Trial Court is shocking. Sub-
section (2) of Section 2 of the CPC defines "decree" as a
formal expression of an adjudication which, so far as
regards the Court expressing it, conclusively determines
the rights of the parties with regard to all or any of the
matters in controversy in the suit. Therefore, the finding
rendered by the learned Judge is clearly opposed to the
settled position of law. If on the other hand, on analyzing
5
(2009) 1 SCC 689
- 17 -
the averments made in the plaint and having regard to the
earlier judgment, if it was found that the cause of action
was not same and the relief sought for by the plaintiff in
the earlier suit is not the same in the present suit, on that
ground it was permissible for the learned Judge to say that
the present suit was not hit by the principles of res
judicata. No such finding is forthcoming from the
impugned order. It is relevant to notice the decision of
the Apex Court in the case of Jaswant Singh Vs.
Custodian of Evacuee Property6, which reads as
follows:
"14. ... In order that a defence of res judicata may
succeed it is necessary to show that not only the
cause of action was the same but also that the
plaintiff had an opportunity of getting the relief
which he is now seeking in the former
proceedings. The test is whether the claim in the
subsequent suit or proceedings is in fact founded
upon the same cause of action which was the
foundation of the former suit or proceedings."
13. Such a finding of the learned Judge that the
earlier judgment is not a judgment rendered on merits,
6
(1985) 3 SCC 648
- 18 -
exceeds the jurisdiction and powers of the learned Judge
of the City Civil Court. A judgment rendered by a
competent court is binding on the parties in the said
proceedings. If one of the parties to the said proceedings
is aggrieved of the fact that no opportunity was given to
adduce evidence or to put forth the arguments or that the
decision was rendered ex-parte, such a party should take
steps to get the decision set aside in a manner known to
law. Unless the said decision is set aside in a manner
known to law, the aggrieved party cannot contend in
another suit or proceedings that the earlier decision is not
binding on the party. Even if such a contention is put
forth, such a finding cannot be rendered by another court
of similar jurisdiction. The court considering a subsequent
suit cannot sit in judgment over a decision rendered by
another court of co-ordinate jurisdiction.
14. On facts, it is clear that the original plaintiff had
earlier filed a suit for partition and separate possession
against the other family members. The said suit was
dismissed. No steps were taken either to prefer an appeal
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or file a miscellaneous petition to recall the judgment or
set aside the same. Consequently, it should be held that
the earlier judgment in O.S.No.929/1991 which was filed
by the plaintiff is binding on the plaintiff and the
defendants thereto. It is therefore impermissible for the
plaintiff to have filed another suit seeking the same relief
of partition and separate possession, even if one more
party is added as a defendant, who has subsequently
purchased the property from the other defendants, who
succeeded in the earlier suit. With such admitted facts,
the only conclusion that could be drawn by the Trial Court
was to affirm the preliminary issue and dismiss the suit on
the ground of res judicata.
15. It is necessary to notice the decision of the Apex
Court in the case of Sulochana Amma Vs. Narayanan
Nair7, where the confusion which prevailed earlier, having
regard to the words employed in Section 11 of the CPC,
viz., "competent to try such subsequent suit" and the
amendment brought to Section 11 of the CPC vide an
7
(1994) 2 SCC 14
- 20 -
Amending Act, 1976, was dealt with and it was held that
the result that would flow is an order or issue which had
arisen directly or substantially between the parties or
privies and decided finally by a competent court or tribunal
though of limited or special jurisdiction which includes
pecuniary jurisdiction will operate as res judicata in a
subsequent suit or proceeding, notwithstanding the fact
that such court had limited or special jurisdiction was not a
competent court to try the subsequent suit. This issue
however does not arise in the present case.
16. The Apex Court in the case of K.Arumuga
Velaiah (supra) has noticed the earlier decision of the
Apex Court in the case of State of W.B. Vs. Hemant
Kumar Bhattacharjee and held that even a wrong
decision can be superseded only through appeals to higher
tribunals or courts or through review, if provided by law.
Therefore, the remedy available for the plaintiff who
suffered dismissal of a suit for partition and separate
possession in O.S.No.4866/2010 was to question the same
either by way of an appeal or by filing a Miscellaneous
- 21 -
Petition to recall the order and have the matter
reconsidered. That not being done, the judgment
rendered in the earlier suit has attained finality. It was
not open for the learned Judge to have said in the
impugned order that the earlier suit was not adjudicated,
since no evidence was recorded and no documents were
marked. Such a finding is clearly opposed to the principles
of law, well settled.
17. This Court is therefore of the considered opinion
that since the plaintiff had filed a suit earlier in
O.S.No.929/1991 seeking the very same relief i.e., for
partition and separate possession suffered dismissal of the
suit, the issue raised in the present suit is a matter
directly and substantially the issue already considered by a
competent Court, between the same parties, the present
suit is clearly hit by Section 11 of the Code of Civil
Procedure and therefore, the preliminary issue, 'whether
the suit of the plaintiff is hit by principles of res judicata?'
should have been answered positively, while dismissing
the suit.
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18. For the reasons stated hereinabove, this Court
proceeds to pass the following:
ORDER
i) The Civil Revision Petition is allowed.
ii) The impugned order dated 14.08.2024 passed by the learned IX Addl. City Civil and Sessions Judge, Bengaluru in O.S.No.4866/2010 is hereby quashed and set aside.
iii) Consequently the preliminary issue is answered against the plaintiff. The suit in O.S. No.4866/2010 is accordingly dismissed.
iv) A copy of this order shall be placed before Hon'ble the Chief Justice and the learned Registrar (Vigilance) for further action.
Sd/-
(R DEVDAS) JUDGE JT/-
CT: JL