Karnataka High Court
Sri Madappa @ Desigowda vs Smt Manjula Devi on 6 July, 2022
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
R.F.A.NO.292 OF 2021 (DEC / INJ)
BETWEEN
SRI.MADAPPA @ DESIGOWDA
S/O LATE SIDDEGOWDA,
AGED ABOUT 80 YEARS,
R/AT NO.4, 3RD CROSS,
2ND MAIN, KVS LAYOUT,
NANJAMBA AGRAHARA,
CHAMARAJAPET,
BENGALURU-560018. ...APPELLANT
(BY SRI. S.B.KRISHNA, ADVOCATE)
AND
1. SMT. MANJULA DEVI
W/O SRI.SRINIVAS,
AGED ABOUT 55 YEARS,
R/AT NO.22, 1ST CROSS,
NANJAMBA AGRAHARA,
BENGALURU-560018.
2. SMT.CHENNAMMA
W/O LATE CHIKKANNA,
AGED ABOUT 75 YEARS,
R/AT NO.35, 3RD CROSS,
AZADNAGAR,
BANGALORE-560018.
3. SRI.N.B.JALANNA
S/O LATE BRAHMASURAPPA,
AGED ABOUT 79 YEARS,
R/AT AADHALAGERE VILLAGE,
GUBBI TALUK,
TUMKUR DISTRICT-572216.
2
4. SMT.LAKSHMAMMA
W/O SRI.VARADARAJU,
AGED ABOUT 55 YEARS,
R/AT NO.2, 2ND CROSS,
NANJAMBA AGRAHARA,
SHANKAR LAYOUT,
CHAMARAJPET,
BANGALORE-560018. ...RESPONDENTS
(BY SRI.B.N.ANANTHNARAYANANA AND
SRI.D.G.CHINNAPPAGOWDA, ADV. FOR R1;
NOTICE TO R2 TO R4-DISPENSED WITH)
THIS APPEAL IS FILED UNDER SECTION 96 CPC AGAINST
THE ORDER DATED 01.02.2021 PASSED IN O.S.NO.26038/2020
ON THE FILE OF THE XXVIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU DISMISSING THE SUIT FOR
DECLARATION AND INJUNCTION AS NOT MAINTAINABLE.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the plaintiff in O.S.No.26038/2020 is
directed against the impugned order dated 01.02.2021
passed by the 28th Additional City Civil and Sessions
Judge, Bengaluru, whereby the trial Court came to the
conclusion that the suit of the plaintiff was not
maintainable on the ground that it was barred in view of
the earlier proceedings between the parties and
consequently, proceeded to pass the impugned judgment
and decree dismissing the suit.
2. Heard learned counsel for the appellants and
learned counsel for the respondents and perused the material
on record.
3. The material on record indicates that the
appellants - plaintiffs instituted the aforesaid suit for
declaration, permanent injunction and other reliefs in respect
of the suit schedule properties. In addition to contesting the
suit by filing her written statement, respondent No.1 also
contended that in view of the earlier round of litigation
between the parties which ended in favour of respondent
No.1-defendant No.4, the instant suit was not maintainable.
By the impugned order, the trial Court accepted the said
contention urged by respondent No.1 and dismissed the suit
as not maintainable, aggrieved by which the appellant is
before this Court by way of the present appeal.
4. I have given my anxious consideration to the rival
submissions and perused the material on record.
5. The only point that arises for consideration in the
present appeal is, in the facts and circumstances of the instant
case, whether the trial court was justified in dismissing the suit
as not maintainable in view of the earlier round of litigation
between the parties. In this context, it is relevant to state that
the question as to whether the suit was maintainable in view of
the bar of res judicata can be adjudicated upon as a
preliminary issue, if it involves disputed / mixed questions of
law and fact is no longer res integra as held by the Apex Court
and this Court in several judgments including the recent
judgment of the Apex Court in the case of Sathyanath &
Another vs. Sarojamani - Civil Appeal No.3680/2022 dated
06.05.2022, wherein, it is clearly held that if the issue
regarding maintainability of the suit as barred by res judicata
involves disputed / mixed questions of fact and law based on
rival contentions, pleadings and evidence, the said
question/issue cannot be treated or adjudicated upon without
recording evidence as a preliminary issue but has to be
decided along with the other questions/issues in the suit. In
the instant case, a perusal of the pleadings and evidence
adduced by both sides, will clearly indicate that there are
several contentious issues as well as complicated, disputed
and mixed questions of fact and law that arise for
consideration between the parties on all issues including the
issue regarding res judicata.
6. Under these circumstances, I am of the
considered opinion that the trial court completely misdirected
itself and committed a patent illegality and procedural
impropriety in dismissing the suit as not maintainable and
barred by res judicata without recording evidence and by
passing the impugned judgment and decree, which is not only
contrary to the well settled principles of law enunciated by the
Apex Court and this Court but also the material on record
warranting interference in the present appeal.
7. Accordingly, though several contentions have
been urged by both sides in support of their respective claims,
without expressing any opinion on the merits/demerits of the
rival contentions, I deem it just and appropriate to set aside
the impugned order as well as the impugned judgment and
decree and remit the matter back to the trial court for
reconsideration afresh in accordance with law.
8. In the result, I pass the following:
ORDER
i. Appeal is hereby allowed.
ii. The impugned judgment and decree dated
01.02.2021 passed in O.S.No.26038/2020
by XXVIII Additional City Civil and
Sessions Judge, Bengaluru the is hereby
set aside.
iii. Matter is remitted back to the trial Court
for reconsideration afresh in accordance
with law.
iv. Appellant and respondent No.1 undertake
to appear before the trial Court on
03.08.2022 without awaiting further
notice from the trial Court.
v. Upon appearing before the trial Court, the
appellant shall take necessary steps in
respect of defendant Nos.1 to 3 -
respondent Nos.2 to 4 so as to enable the
trial Court to proceed further in the
matter.
vi. Liberty is reserved in favour of the parties
to adduce oral and documentary evidence
in support of their respective claims.
vii. All rival contentions are kept open and no
opinion is expressed on the same.
Sd/-
JUDGE
JS / BMC
