Mr. Shankarappa vs Mr. Honneeregowda
2022 Latest Caselaw 5641 Kant

   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 29TH DAY OF MARCH, 2022

                          BEFORE

        THE HON'BLE MR. JUSTICE E.S.INDIRESH

            W.P. NO. 22497 OF 2019 (GM-CPC)

BETWEEN

MR. SHANKARAPPA
S/O. ARUNACHALAPPA,
AGED ABOUT 61 YEARS,
RESIDING AT HAROHALLI VILLAGE,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT-562 117
                                               ...PETITIONER
(BY SRI GEETHA RAJ, ADVOCATE)

AND

MR. HONNEEREGOWDA
S/O. EREGOWDA,
AGED ABOUT 57 YEARS,
R/AT KULUMEBHEEMASANDRA VILLAGE,
HAROHALLI HOBLI,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT-562 117.
                                             ....RESPONDENT
(BY SRI SIDDAMALLAPPA P M, ADVOCATE)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
10TH APRIL, 2019 VIDE ANNEXURE-A PASSED BY PRINCIPAL CIVIL
JUDGE AND JMFC, KANAKAPURA IN O.S.NO.525 OF 2014, REJECTING
THE INTERLOCUTORY APPLICATION FILED BY THE PETITIONER
HEREIN UNDER SECTION 11 OF THE CODE OF CIVIL PROCEDURE
1908 AND ALSO DIRECT THE COURT BELOW TO DISMISS THE SUIT IN
O.S.525 OF 2014.
                                  2




      THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

This writ petition is filed by the defendant in OS No.525 of

2014 on the file of the Principal Civil Judge and JMFC,

Kanakapura, challenging the order dated 10.04.2019 passed on

IA.V, rejecting the application filed by the defendant.

2. Brief facts are that the plaintiff/respondent herein

has filed suit for specific performance of the contract, based on

the Sale Agreement and Agreement of Conveyance dated

09.01.1998 and 20.01.2002 respectively. Children of the plaintiff

in OS No. 525 of 2014 have filed Original Suit No.55 of 2004

seeking relief of partition and separate possession, claims their

1/3rd share by meets and bounds in respect of suit schedule

property mentioned in the suit. The suit in Original Suit No.55 of

2004 came to be dismissed. Feeling aggrieved by the same, the

plaintiff preferred RA No.8 of 2011 before the Presiding Officer,

Fast Track Court, Kanakapura Taluk, Ramanagar District and

said appeal came to be dismissed by the judgment and decree

passed by the First Appellate Court on 15.11.2012. Being

aggrieved by the same, the sons of the plaintiff have preferred

RSA No.2362 of 2012 and said appeal came to be dismissed by

this court by judgment and decree dated 08.01.2013. The

defendant entered appearance in Original Suit No.525 of 2014

and contested the matter. In the meanwhile,

defendant/petitioner filed IA.V stating that the suit is barred by

res-judicata. The said application was resisted by the plaintiff.

The trial Court, after considering the material on record, by

order dated 10.04.2019, rejected IA.5 and feeling aggrieved by

the same, the defendant has preferred this Writ Petition.

3. I have heard Smt Geetha Raj, learned counsel

appearing for the petitioner and Sri P.M.Gopi learned counsel

appearing on behalf of Sri P.M.Siddamallappa, for the

respondent.

4. Smt Geetha Raj, learned counsel appearing for the

petitioner drew the attention of the court to the judgment and

decree passed by the trial Court in Original Suit No.55 of 2004

(Annexure- F) and particularly, issue No.4 in the said suit and

argued that the trial Court has already given a finding in

dismissing the suit and also held against defendants in Original

Suit No.55 of 2004 and the said finding recorded by the trial

Court has been confirmed by this Court in RSA No.2362 of 2012

and therefore, the said aspect of the matter, has to be

considered in Original Suit No.525 of 2014. Accordingly, she

relied upon the judgment of the Hon'ble Apex Court in the case

of Amarendra Komalam and another Vs. Usha Sinha and

another reported in AIR 2005 SC 2758 and argued that the

issue raised in the earlier suit is applicable to the facts and

circumstances of the later case and as such, the principles of

res-judicata and estoppel would apply to Original Suit No.525 of

2014. She also referred to the judgment in the case of Jamia

Masjid, Gubbi Vs. Sri K.V. Rudrappa, dead by Lrs and

others reported in ILR 2012 KAR 1368 and argued that the

prayer sought in the later suit is directly, and substantially

answered in the finding recorded by the trial Court in the earlier

suit. Therefore, the finding recorded by the trial Court required

interference in this Writ Petition.

5. Per contra, Sri P.M.Gopi, learned counsel appearing

for the respondent sought to justify the impugned order passed

by the trial Court and submitted that the relief sought in both

the suits are distinct and therefore, he supported the impugned

order.

6. Having heard the learned counsel appearing for the

parties and on careful examination of writ papers would indicate

that the relief sought in Original Suit No.525 of 2014 by the

plaintiff is with regard to specific performance based on the Sale

Agreement and Agreement of Conveyance dated 09.01.1998 and

20.01.2002 respectively. The issue adjudicated by the trial Court

in OS No. 55 of 2004 is with regard to the relief of partition and

separate possession in respect of the suit schedule property. I

find force in the arguments of learned counsel appearing for the

petitioner that the subject matter of the suit is identical in both

the suits, however, the relief sought for by the parties are

different and distinct in both the suits. That apart, Original Suit

No. 525 of 2014 is filed by the father of the plaintiff in Original

Suit No.55 of 2004 and issues that may be answered in Original

Suit No.525 of 2014 are different from the issues answered in

Original Suit No.55 of 2004. In that view of the matter, following

the law declared by the Hon'ble Apex Court in the case of

Kamala and others vs. K.T.Eshwara Sa and others reported

AIR 2008 SC 3174, wherein, it is held that in a case relating to

applicability of the jurisdiction or exercising power under any

law, the court should be circumspection with the averments

made in the plaint and also even if the finding recorded by the

trial Court, in a particular judgment is substantially applicable to

the issues in a later suit, however, the relief sought by the

parties has to be looked into and in this connection, this court in

the case of Jamia Masjid referred to above at paragraph 35 of

the judgment held that the prayer sought in the suit directly and

substantially has to be considered in the earlier suit. In that view

of the matter, I am of the view that the judgment referred to by

the petitioner herein is not applicable to the facts on hand, since

the prayer sought in suit is distinct and trial was proceeded on a

different premise. Therefore, the trial Court is justified in

rejecting IA.V. Accordingly, the writ petition is dismissed as

devoid of merits. Learned counsel appearing for the petitioner

also mentioned that, it is third round of litigation between the

parties and also the suit is of year 2013, in that view of the

matter, the trial Court shall expedite the hearing and complete

the proceedings at the earliest.

Sd/-

JUDGE

SB