Karnataka High Court
Sri G Chikkanna @ Ravishankar vs Sri Kiran Kumar C on 2 June, 2022
Bench: Ashok S.Kinagi
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.1514 OF 2021 (GM-CPC)
BETWEEN:
SRI G. CHIKKANNA @ RAVISHANKAR
S/O. LATE GANGAIAH,
AGED ABOUT 66 YEARS,
RESIDING AT NO.579, GOWRISHANKARA NILAYA,
ADHARSHA NAGAR, ARASHINAKUNTE KASABA,
BENGALURU RURAL.
... PETITIONER
(BY SRI H.J. KARIGAR, ADV., FOR SRI D. N. MANJUNATH)
AND:
1. SRI KIRAN KUMAR C.
S/O. LATE CHIKKAMUTHAIAH,
AGED ABOUT 27 YEARS.
2. SRI G. REVANNA
S/O. GANGAIAH,
AGED ABOUT 82 YEARS.
3. SRI G. MUTTAIAH
S/O. GANGAIAH,
AGED ABOUT 77 YEARS.
4. SMT. VIJAYALAKSHMI
D/O. G. GIRIYAPPA @ MARIGANGAIAH,
AGED ABOUT 56 YEARS.
5. SMT. NAGAMANI
D/O. G. GIRIYAPPA @ MARIGANGAIAH,
AGED ABOUT 52 YEARS.
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RESPONDENT NOS.1 TO 5 ARE
RESIDING AT NEAR GOVT. SCHOOL,
DASANAPURA VILLAGE AND HOBLI,
NELAMANGALA,
BANGALORE NORTH TALUK - 562162.
6. SMT. JAYALAKSHMAMMA
W/O. LATE CHIKKA MUTHAIAH G.,
AGED ABOUT 52 YEARS,
RESIDING AT DASANAPURA VILLAGE AND POST,
DASANAPURA HOBLI,
NELAMANGALA BANGALORE NORTH TALUK.
PRESENTLY RESIDING AT T BEGURU VILLAGE,
BEGURU HOBLI,
NELAMANGALA TALUK,
BANGALORE RURAL DISTRICT.
... RESPONDENTS
(BY SRI P.M. GOPI, ADV., FOR
SRI P.M. SIDDAMALLAPPA, FOR R-1,
SRI NAVEEN KUMAR K.N., ADV., FOR R-6 &
R-2 TO R-5 ARE SERVED)
***
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED
ORDER DATED 5-12-2020 ON I.A. NO.9 IN O.S. NO.202 OF 2017
PASSED BY THE HONBLE I ADDITIONAL SENIOR CIVIL JUDGE
AND J.M.F.C., NELAMANGALA, VIDE ANNEXURE-A AND
CONSEQUENTLY ALLOW THE APPLICATION FILED BY THE
DEFENDANT NO.5-PETITIONER UNDER SECTION 11 OF THE
CODE OF CIVIL PROCEDURE IN RESPECT OF ITEM NO.1 TO 15 BY
HOLDING THAT THE SUIT ITEMS NO.1 TO 15 HAS BEEN A
SUBJECT MATTER IN O.S. NO.505 OF 2003 AS PER THE
JUDGMENT AND DECREE DATED 3-10-2008 AND O.S. NO.435 OF
2003 AS PER THE JUDGMENT AND DECREE DATED 17-4-2009
BOTH ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE,
BENGALURU RURAL DISTRICT, BENGALURU, AND RESPONDENT
NO.1 HAS BEEN REPRESENTED BY HIS MOTHER,
SMT. JAYALAKSHMAMMA (RESPONDENT NO.6) IN BOTH THE
SUITS.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY
HEARING 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
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ORDER
The petitioner, aggrieved by the order dated
5-12-2020 passed on I.A. No.9 in O.S. No.202 of 2017 by
the I Additional Senior Civil Judge & Judicial Magistrate
First Class, Nelamangala, has filed this writ petition.
2. Brief facts leading rise to filing of this petition are
as under:
Respondent No.1 filed a suit in O.S. No.202 of 2017
for relief of partition and separate possession. The
petitioner filed a written statement denying the averments
made in the plaint. The petitioner filed an application
Under Section 11 of the Code of Civil Procedure, 1908.
Said application was opposed by respondent No.1. The
trial Court, after hearing the parties, rejected the
application. Hence, this writ petition.
3. Heard the learned counsel for the petitioner and
the learned counsel for respondent No.1.
4. Learned counsel for the petitioner submits the
petitioner filed a suit in O.S. No.505 of 2003 for relief of
partition and separate possession. In the said suit,
mother of respondent No.1 was a party as defendant No.4.
The trial Court has passed the judgment against the
mother of respondent No.1 and the suit is barred by the
principles of res judicata. Said aspect has not been
properly considered by the trial Court. He further submits
that 1/5th share has been granted to the mother of
respondent No.1. The trial Court has not properly
appreciated the material on record and he submits that
the impugned order passed by the trial Court is arbitrary,
erroneous and hence, on this ground, he prays to allow
the writ petition.
5. Per contra, the learned counsel for respondent
No.1 submits that mother of respondent No.1 was missing
from 19-10-2002 and prior to filing of O.S. No.505 of
2003, a complaint was registered. He further submits
that respondent No.1 has produced a copy of F.I.R. He
further submits that respondent No.1 has challenged the
judgment and decree passed in O.S. No.505 of 2003. The
said judgment has not attained finality. Hence, he
submits that the trial Court was justified in passing the
order. Hence, on this ground, he prays to dismiss the writ
petition.
6. Perused the records and considered the
submissions made by the learned counsel for the parties.
7. It is not in dispute that respondent No.1 filed a
suit in O.S. No.202 of 2017 seeking for relief of
declaration, where the judgment and decree passed in
O.S. No.505 of 2003 is nullity and not binding on
respondent No.1 and mother of respondent No.1 has been
allotted 1/5th share. Respondent No.1 has challenged the
judgment and decree passed in O.S. No.505 of 2003.
Further, the said judgment passed in O.S. No.505 of 2003
has not attained finality. Further, respondent No.1 has
produced a copy of F.I.R. regarding missing of his mother
since 19-10-2002, i.e. prior to filing of O.S. No.505 of
2003. As on the date of filing of O.S. No.505 of 2003,
respondent No.1 was a minor and without arraying
respondent No.1 to the said suit, the petitioner obtained a
decree in O.S. No.505 of 2003. Judgment passed in O.S.
No.505 of 2003 will not operate as res judicata against
respondent No.1, who was a minor at that time. In a
subsequent suit filed by him, the trial Court considering
the said aspect has proceeded to pass the impugned
order. I do not find any ground to interfere with the order.
8. The petitioner has also filed an application under
Order VII Rule 11(a) of the Code of Civil Procedure, 1908,
to reject the plaint for want of cause of action. The trial
Court by order dated 30-5-2019 dismissed I.A. No.7 filed
by the petitioner. The petitioner aggrieved by the order on
I.A. No.7 preferred Civil Revision Petition No.321 of 2019
before this Court. This Court by order dated 29-7-2019
dismissed the civil revision petition. While dismissing the
civil revision petition, this Court observed that "The
plaintiff-defendant No.5 in O.S. No.505/2003 knowing very
well that the mother of plaintiff-respondent No.1 was
missing made her defendant No.4 in the said suit and she
was placed exparte. The main prayer in the present suit to
declare that the judgment and decree dated 03-10-2008
passed in O.S. No.505/2003 on the file of I Additional
Senior Civil Judge, Bengaluru, as nullity and not binding on
the plaintiff. At this stage, without recording evidence and
without trial, the prayer of defendant No.5 cannot be
accepted." Consequently, dismissed the civil revision
petition. The trial Court after considering the entire
material on record and this Court considering the material
on record and also order passed in civil revision petition, I
do not find any ground to interfere with the impugned
order.
Accordingly, writ petition is dismissed.
Sd/-
JUDGE
kvk
