Karnataka High Court
Sri P C Mallappa vs Smt Chowdamma on 29 November, 2021
Bench: R. Nataraj
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE R. NATARAJ
CIVIL REVISION PETITION NO.122 OF 2021 (IO)
BETWEEN:
SRI. P.C. MALLAPPA
S/O LATE CHIKKAMUNISHAMAPPA,
AGED ABOUT 68 YEARS,
8TH MAIN ROAD, J.P. NAGAR,
BENGALURU-560078. ...PETITIONER
(BY SRI. RAJASHEKAR S., ADVOCATE)
AND:
1. SMT. CHOWDAMMA
W/O LATE MUNIYAPPA,
AGED ABOUT 66 YEARS,
2. SRI. NARAYANASWAMY
S/O LATE MUNIYAPPA,
AGED ABOUT 71 YEARS,
3. SMT. JNANESHWARI
D/O LATE MUNIYAPPA,
AGED ABOUT 38 YEARS,
PLAINTIFF/RESPONDENT NO.1 TO 3
ARE R/AT NO.220/1,
B.B. NAGARA MAIN ROAD,
SAHAKARNAGAR, KODIGEHALLI,
BENGALURU-560092
4. SMT. AKKAYYAMMA
W/O LATE SUBRAMANI,
AGED ABOUT 51 YEARS,
2
5. SMT. KAVITHA
D/O LATE SUBRAMANI,
AGED ABOUT 30 YEARS,
6. SRI. KUMAR
S/O LATE SUBRAMANI,
SINCE DEAD
REPRESENTED BY HIS LR
SMT. AKKAYYAMMA
W/O LATE SUBRAMANI,
MOTHER OF RESPONDENT NO.6
PLAINTIFF/RESPONDENT NO.4 TO 6
ARE RESIDING AT
SONNENAHALLIPURA VILLAGE,
KASABA HOBLI,
HOSAKOTE TALUK-562114
7. SRI. NAGARAJAPPA
S/O LATE DAS @ DASAPPA,
AGED ABOUT 68 YEARS,
R/AT NO.227, 5TH CROSS,
JAKKUR LAYOUT,
NEAR PILLEKAMMA TEMPLE,
JAKKUR POST,
BENGALURU-560064
8. SMT. JAYALAKSHMAMMA
W/O RAMANJINAPPA,
AGED ABOUT 44 YEARS,
R/AT NO.4, DASARAHALLI,
HAL POST, K.R. PURAM HOBLI,
BENGALURU EAST TALUK,
BENGALURU-560024
...RESPONDENTS
(BY SRI. PRASANNA KUMAR R.S., ADVOCATE FOR R1 TO R5;
SRI. RAMESH KUMAR V., ADVOCATE FOR R8,
NOTICE SERVED ON R7 AND UNREPRESENTED)
THIS PETITION IS FILED UNDER SECTION 115 OF CPC,
AGAINST THE ORDER DATED 16.02.2021 PASSED IN
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O.S.NO.294/2015 ON THE FILE OF THE ADDITIONAL CIVIL
JUDGE AND JMFC, DODDABALLAPURA, DISMISSING THE I.A.
UNDER ORDER VII RULE 11 (a) AND (d) OF CPC.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT PASSED THE FOLLOWING:
ORDER
This Revision Petition is filed assailing the
correctness of the order dated 16.02.2021 passed by the
Additional Civil Judge and J.M.F.C at Doddballapura
(henceforth referred to as 'Trial Court') in
O.S.No.294/2015 by which an application filed by the
defendant No.3 under Order VII Rule 11(a) and (d) of
Code of Civil Procedure was rejected.
2. The suit in O.S.No.294/2015 was filed for
partition and separate possession of the shares of the
plaintiffs in the suit schedule property. It was contended in
the suit that the plaintiffs and defendant Nos.1 and 2
constituted a joint family and that the suit property was
owned and possessed by the grandfather of the plaintiff
Nos.2 to 6. It is claimed that the defendant No.1 had
unlawfully executed a Power of Attorney and Agreement of
Sale in favour of the defendant No.2. The plaintiffs
contended that the said Power of Attorney did not bind
their right, title and interest in the suit schedule property.
The suit was contested by the defendant No.3 who filed his
written statement. He filed application under Order VII
Rule 11(a) and (d) of Code of Civil Procedure contending
that the plaintiffs in O.S.No.294/2015 were arrayed as
defendant Nos.2 to 7 in O.S.No.35/2008 and they had
consented to decree the suit filed in O.S.No.35/2008,
consequent to which O.S.No.35/2008 was decreed in
terms of the Judgment and Decree dated 26.03.2009. It
is, therefore, contended that there is no cause of action for
filing the present suit and that the present suit was barred
by principles of res-judicata.
3. The Trial Court after considering the contentions
raised in the plaint held that the plaint discloses sufficient
cause of action and that it did not bear any reference to
the earlier suit filed in O.S.No.35/2008 and hence, rejected
the application filed by the defendant No.3. Being
aggrieved by the aforesaid Order, the present petition is
filed.
4. Learned counsel for the defendant No.3 - plaintiff
herein reiterated his contentions and contended that the
dispute between the parties were already settled in
O.S.No.35/2008 and therefore, there is no cause of action
to file the present suit and that the present suit is barred
by principles of res-judicata.
5. On the contrary, learned counsel for the
respondents submitted that the share of the plaintiffs was
not declared in O.S.No.35/2008. He also contended that a
reading of the plaint did not indicate any reference to the
suit filed in O.S.No.35/2008 and therefore, the Trial Court
was justified in rejecting the application taking into
consideration the averments of the plaint. He also
contended that the res-judicata being a question of fact
has to be treated and adjudicated in the suit and that the
same cannot be considered at the initial stage of the suit
itself.
6. I have considered the submission made by the
learned counsel for the parties.
7. As rightly contended by the learned counsel for
the respondents, the plaint did not mention about the suit
filed in O.S.No.35/2008. Even assuming that the plaintiffs
in the present suit were the defendant Nos.2 to 7 in
O.S.No.35/2008, which was filed for partition and separate
possession by another member of the joint family, their
share was not declared in the said suit. Thus there is no
impediment in law for the plaintiffs to file O.S.No.294/2015
for partition of their share. It is prima-facie evident that
the principles of res-judicata was not applicable as the
share of the plaintiffs was not decided in O.S.No.35/2008.
8. The suit is based on a clear cause of action
that the suit properties were ancestral properties in the
hands of the defendant No.1 and that he had proprietarily
executed a Power of Attorney in favour of the defendant
No.2. It was also contended that the plaintiffs requested
the defendant No.1 to partition of the suit property which
was turned down.
In that view of the matter, the Trial Court was
justified in rejecting the application. There is no merit in
the Revision Petition and the same is dismissed.
Any observation made in this Order is only for the
limited purpose of deciding this Revision Petition and the
Trial Court shall not be influenced by the same while
disposing off O.S.No.294/2015 on merits.
Sd/-
JUDGE
NBM
