Sri Adinarayanappa vs Sri Dayanand Kumar
2022 Latest Caselaw 7375 Kant

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  IN THE HIGH COURT OF KARNATAKA, BENGALURU

        DATED THIS THE 24TH DAY OF MAY, 2022

                         BEFORE

   THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

                R.F.A.NO.675 OF 2022 (INJ)
BETWEEN

SRI ADINARAYANAPPA
S/O LATE GANGAPPA
AGED ABOUT 50 YEARS
NO.1, 10TH CROSS, CUBBONPET
BANGALORE-560 002.
                                               ...APPELLANT
(BY SRI.M.J.ALVA, ADVOCATE)

AND

SRI DAYANAND KUMAR
S/O NANDEESHA
AGED ABOUT 46 YEARS
NO.8/9, NAGASHETTIHALLI MAIN ROAD
SAHAKARA NAGAR
NEAR TATA NAGAR AND GANESHA TEMPLE
BANGALORE-560 092.

AND ALSO RESIDING AT:

NO.24/3, KODIGEHALLI OLD VILLAGE
NEAR GANESHA TEMPLE
SAHAKARANAGAR
BANGALORE-560 092
                                             ...RESPONDENT

(BY SRI.A.SAMPATH, ADVOCATE)

      THIS APPEAL IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 OF CPC AGAINST THE ORDER DATED 29.03.2022 PASSED
ON IA NO.XII IN OS NO.2911/2019 ON THE FILE OF THE XXVII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, C/C XLIV
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ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
ALLOWING THE IA FILED UNDER SECTION 11 OF CPC AND ETC.

     THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

This appeal by the plaintiff in O.S.No.2911/2019 is

directed against the impugned order dated 29.03.2022 passed

by the XXVII Addl. City Civil & Sessions Judge, Bengaluru

concurrent charge XLIV Addl. City Civil & Sessions Judge,

Bengaluru, whereby the application-I.A.XII filed by the

respondent / defendant under Section 11 CPC was allowed by

the trial Court and the suit filed by the appellant / plaintiff was

consequently dismissed by the trial Court.

2. Heard learned counsel for the appellant and

learned counsel for the respondent and perused the material

on record.

3. The material on record discloses that the

appellant / plaintiff filed the aforesaid suit for permanent

injunction and other reliefs in respect of the suit schedule

immovable property. The suit having been contested by the

respondent / defendant, he filed an application-I.A.XII under

Section 11 CPC unequivocally contending that in view of the

earlier proceedings in respect of the suit schedule property

which had attained finality which consequently binds upon the

appellant / plaintiff, the suit was hit by principles of res judicata

and the same was not maintainable and liable to be dismissed

in limine.

4. The said application-I.A.XII having been opposed,

the trial Court proceeded to pass the impugned order allowing

I.A.XII by holding that the suit was barred by principles of res

judicata and consequently, dismissed the suit. Aggrieved by

the impugned order, the appellant / plaintiff is before this Court

by way of the present appeal.

5. The only question that arises for consideration in

the present appeal is whether the impugned order passed by

the trial Court dismissing the suit as being barred by res

judicata is sustainable in law?

6. Though several contentions have been urged by

both sides before this Court in the present appeal as well as

before the trial Court in the suit, a perusal of the impugned

order will clearly indicate that the trial Court has committed

procedural impropriety and illegality in deciding the issue

regarding res judicata as a preliminary issue without

appreciating that res judicata is a mixed question of fact and

law which cannot be decided or adjudicated upon as

preliminary issue under Order 14 Rule 2 CPC, which enables

the trial Court to decide only pure questions of law or issues

pertaining to jurisdiction as preliminary issue and not issues

consisting of mixed questions of fact and law.

7. Under these circumstances, though several

contentions have been urged by both sides in support of their

respective claims, on the sole ground of procedural

impropriety, illegality and contravention of the provisions of

Order 14 Rule 2 CPC as held by the Apex Court in the case of

SRIHARI HANUMANDAS TOTALA Vs. HEMANT VITHAL

KAMAT AND OTHERS reported in AIR 2021 SC 3802 and

recent judgment of the Apex Court in the case of

SATHYANATH AND ANOTHER Vs. SAROJAMANI (Civil

Appeal No.3580/2022 DD 06.05.2022), I am of the considered

opinion that the impugned order passed by the trial Court

allowing I.A.XII thereby dismissing the suit cannot be

sustained and the same deserves to be set aside in the

present appeal by setting aside the impugned order passed by

the trial Court and remitting 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) Impugned order dated 29.03.2022

passed by the XXVII Addl. City Civil & Sessions

Judge, Bengaluru concurrent charge XLIV Addl.

City Civil & Sessions Judge, Bengaluru, is set

aside.

(iii) Matter is remitted back to the trial

Court for reconsideration afresh by adjudicating

upon all issues including issue regarding res

judicata along with other issues at the time of final

disposal of the suit.

(iv) Having regard to the fact that the

pleadings have been completed, issues are framed

and trial of the suit has already commenced, I

deem it just and proper to direct the trial Court to

dispose of the suit as expeditiously as possible and

at any rate on or before 30.09.2022.

(v) All rival contentions between the

parties including the issue regarding res judicata

and all other aspects of the matter are kept open

and no opinion is expressed on the same.

(vi) Parties are directed to appear before

the trial Court without any further notice on

06.06.2022.

SD/-

JUDGE

SV