Karnataka High Court
Basayya S/O Mallayya vs Bandappa S/O Late Basanna on 23 October, 2021
Author: Krishna S Dixit
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF OCTOBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE KRISHNA S.DIXIT
CRP NO.200012/2021
BETWEEN:
BASAYYA S/O LATE MALLAYYA
AGE: 64 YEARS,
OCC: AGRICULTURE,
R/O ARISHANGI VILLAGE,
TQ. AND DIST. RAICHUR-584 113
... PETITIONER
(BY SRI PREETAM DEULGAONKAR &
SRI SHIVAPUTRA UDBALKAR, ADVOCATES)
AND:
BANDAPPA S/O LATE BASANNA
AGE: 49 YEARS,
OCC: AGRICULTURE,
R/O ARISHANGI VILLAGE,
TQ. AND DIST. RAICHUR-584 113
... RESPONDENT
(BY SRI SACHIN M. MAHAJAN, ADVOCATE)
THIS CRP IS FILED UNDER SECTION 115 OF THE
CPC, PRAYING TO ALLOW THIS PETITION AND SET ASIDE
THE ORDER DATED 15.06.2021 PASSED BY THE
HONOURABLE COURT II ADDL. CIVIL JUDGE AND JMFC -IV
AT RAICHUR WHEREBY THE I.A. NO.II FILED BY THE
2
PRESENT PETITIONER/DEFENDANT IN O.S.NO.132/2020 IS
REJECTED.
THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner being the sole defendant in a suit
for declaration & injunction in O.S.No.132/2020 is
knocking at the doors of Revisional Court for assailing
the order dated 15.06.2021 made by the learned II
Additional Civil Judge at Raichur, whereby his
application in I.A.No.II filed u/s 11 of CPC, 1908, having
been rejected, his request for resjudicating the suit has
been turned down.
2. After service of notice, the respondent/
plaintiff has entered appearance through his counsel,
who vehemently opposes the petition making
submission in justification of the impugned order and
the reasons on which it has been constructed.
3. Having heard the learned counsel for the
parties and having perused the petition papers, this
court declines indulges in the matter for the following
reasons:
a. The respondent's earlier suit in
O.S.No.240/2011 was dismissed on 21.08.2017 is true;
even his appeal in R.A.No.37/2017 was also dismissed
is also true; however, the said suit was for a decree of
bare injunction whereas, the present suit in
O.S.No.132/2020 is for declaration and consequent
injunction; that being the position, there is no unity
and identity of the substrata of both the suits; therefore,
the doctrine of res judicata enacted in section 11 of
Code is not invokable, as rightly held by the court
below.
4. The reliance of learned counsel for the
petitioner on the decision of the Apex court in the case
of Asgar and Others vs. Mohan Varma and Others
reported in (2020) 16 SCC 230 does not much come to
his aid, the fact matrix being miles away from that of
the present suit; it has long been settled by Lord
Halsbury in Quinn v. Leathem (1901) A.C.495, 506
that a case is an authority for the proposition laid down
in a given fact matrix and not for all that which logically
arises from what has been so laid down.
5. The court below in its discretion has made
the impugned order which does not merit a deeper
examination at the hands of this court, the scope of
statutory revision being restrictive; even otherwise, it is
open to the petitioner to make the impugned order one
of the grounds to lay a challenge to the adverse
judgment and decree if and when made in the suit, as
provided under Order XLIII Rule 1A read with section
105 of the Code.
6. In the above circumstances, this petition
being devoid of merits is liable to be dismissed and
accordingly, dismissed.
7. In view of disposal of the main petition,
I.A.No.1/2021 does not survive for consideration.
Sd/-
JUDGE
VNR
