Karnataka High Court
Sri. Annagouda Ramgouda Patil vs Sri. Jambu Dhanapal Bankapure on 14 July, 2022
Bench: R.Devdas
-1-
WP No. 115370 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE R.DEVDAS
WRIT PETITION NO. 115370 OF 2019 (GM-CPC)
BETWEEN:
SRI. ANNAGOUDA RAMGOUDA PATIL
AGED ABOUT: 79 YEARS,
OCC: AGRICULTURE,
R/O: BORGAON, TQ: CHIKODI,
DIST: BELAGAVI.
...PETITIONER
(BY SRI RAMACHANDRA MALI, ADVOCATE)
AND:
1. SRI. JAMBU DHANAPAL BANKAPURE
AGED ABOUT: 57 YEARS,
OCC: AGRICULTURE,
R/O: BORGAON,TQ: CHIKODI,
DIST: BELAGAVI - 590001.
2. SRI.SIDDAGOUDA DEVAGOUDA PATIL
AGED ABOUT: 69 YEARS,
OCC: AGRICULTURE,
R/O: BORGAON, TQ: CHIKODI,
DIST: BELAGAVI - 590001.
3. SRI.BHUJAGOUDA DEVAGOUDA PATIL
AGED ABOUT: 64 YEARS,
-2-
WP No. 115370 of 2019
OCC: AGRICULTURE,
R/O: BORGAON, TQ: CHIKODI,
DIST: BELAGAVI - 590001.
...RESPONDENTS
(BY SRI SHARAD V.MAGADUM ,ADVOCATE FOR R1
SERVICE OF NOTICE TO R2 & R3 IS HELD SUFFICIENT)
THIS WRIT PETITION IS FIELD UNDER ARICLES 226 AND
227 OF THE CONSTITUION OF INDIA, PRAYING TO ISSUE A
WRIT OF CERTIORARI OR ANY OTHER WRIT IN THE LIKE
NATURE QUASHING THE ORDER DTD. 2-8-2019 MADE IN
O.S.NO.16/2015 PASSED BY THE PRL. CIVIL JUDGE AND JMFC
CHIKODI PRODUCED AT ANNEXURE-H AND ETC.
THIS PETITION COMING ON FOR ORDERS THIS DAY. THE
COURT MADE THE FOLLOWING.
ORDER
Notice sent to respondents No.2 and 3 have returned
with a postal shara "refused". Therefore notice sent to
respondents No.2 and 3 is held sufficient.
2. Petitioner is aggrieved by a cryptic order dated
02.08.2019 passed by the Prl. Civil Judge & JMFC,
Chikkodi in O.S.no.16/2015. The petitioner herein is the
defendant in the suit. The petitioner/defendant filed a
written statement and raised a dispute that the suit is hit
WP No. 115370 of 2019
by principles of resjudicata. An application was filed at the
hands of the petitioner/defendant to treat the issue of
resjudicata as a preliminary issue. The said application
was treated as a preliminary issue. Nevertheless when
arguments were advanced by the learned counsels, the
trial court has proceeded to pass the following order;
"Perused the records, the additional
issued is treated as preliminary issue
regarding resjudicata. The issue is heard
without trial. I am of the opinion that
enquiry is necessary to decide the suit as it
consists mixed question of facts and law.
Hence for enquiry of preliminary issue by
9.9.2019".
3. Learned counsel for the petitioner/defendant
has drawn the attention of this Court to a judgment of the
Hon'ble Apex Court in the case of The Jamia Masjid
/vs./ Sri K.V.Rudrappa (since Dead) by LRs & Ors.
in Civil Appeal No.10946/2014 dated 23.09.2021.
WP No. 115370 of 2019
4. On going through the said judgment, it is clear
that the trial court was required to consider the material
available on record viz., the two earlier suits in
O.S.No.26/1995 and O.S.No.306/2009, the pleadings
therein, the prayer made therein and the judgments and
determine as to whether the issue was directly and
substantially decided in the previous suit. The judgment of
the Hon'ble Apex Court would also throw light as to what
are the tests that are required to be applied for
considering whether a suit is hit by the principles of res
judicata. Even otherwise, what was opined by the trial
court that there should be an enquiry on the preliminary
issue. Therefore, this Court is of the considered
opinion that the matter requires reconsideration at the
hands of the trial court.
5. Consequently, the impugned order dated
02.08.2019 in O.S.No.16/2015 is hereby quashed and set
aside. The matter stands remanded back to the trial court
to reconsider the question of res judicata as a preliminary
WP No. 115370 of 2019
issue, more-so in the light of the judgment cited by the
learned counsel for the petitioner and any other judgment
which would be helpful in deciding the issue.
Ordered accordingly.
SD
JUDGE
KLY
