Bhimappa S/O Mallappa Immadi vs Yallappa S/O Nagappa ...
2022 Latest Caselaw 13223 Kant

                           -1-




                                    WP No. 107716 of 2019


          IN THE HIGH COURT OF KARNATAKA,
                    DHARWAD BENCH
     DATED THIS THE 22ND DAY OF NOVEMBER, 2022
                         BEFORE
     THE HON'BLE MR JUSTICE N.S.SANJAY GOWDA
     WRIT PETITION NO. 107716 OF 2019 (GM-CPC)
BETWEEN:
1.    BHIMAPPA S/O MALLAPPA IMMADI
      AGE: 59 YEARS, OCC: AGRICULTURE,
      R/O: HALLIKERI VILLAGE,
      TQ: NAVALGUND, DIST: DHARWAD.
2.    SUBHAS S/O MALLAPPA IMMADI
      AGE: 53 YEARS, OCC: AGRICULTURE,
      R/O: HALLIKERI VILLAGE,
      TQ: NAVALGUND, DIST: DHARWAD.
3.    YALLAPPA S/O MALLAPPA IMMADI
      AGE: 44 YEARS, OCC: AGRICULTURE,
      R/O: HALLIKERI VILLAGE,
      TQ: NAVALGUND, DIST: DHARWAD.
4.    DEVAPPA S/O MALLAPPA IMMADI
      AGE: 42 YEARS, OCC: AGRICULTURE,
      R/O: HALLIKERI VILLAGE,
      TQ: NAVALGUND, DIST: DHARWAD.
                                           ...PETITIONERS
(BY SRI. ARUN L NEELOPANT &
 SRI.SRIHARSH A NEELOPANT, ADVS.)




AND:
1.    YALLAPPA S/O NAGAPPA GIDDAHANAMANNAVAR
      SINCE DECEASED BY HIS LRS.R2 TO R5
2.    HANAMAPPA NAGAPPA GIDDAHANAMANNAVAR
                         -2-




                               WP No. 107716 of 2019


     AGE: 65 YEARS, OCC: AGRICULTURE,
     R/O: SAMBHAPUR VILLAGE,
     TQ: GADAG, DIST: GADAG.
3.   NAGAPPA S/O HANAMAPPA GIDDAHANAMANNAVAR
     AGE: 43 YEARS, OCC: AGRICULTURE,
     R/O: SAMBHAPUR VILLAGE,
     TQ: GADAG, DIST: GADAG.
4.   DEVAPPA S/O HANAMAPPA GIDDAHANAMANNAVAR
     AGE: 36 YEARS, OCC: AGRICULTURE,
     R/O: SAMBHAPUR VILLAGE,
     TQ: GADAG, DIST: GADAG.
5.   KENCHAPPA S/O NAGAPPA GIDDAHANAMANNAVAR
     SINCE DECEASED BY HIS LRS.
     5(a) LAXMAVVA W/O KENCHAPPA
     GIDDAHANAMANNAVAR,
     AGE: 65 YEARS, OCC: HOUSEHOLD,
     R/O: SAMBAPUR VILLAGE,
     TQ: GADAG, DIST: GADAG.
     5(b) NINGAPPA S/O KENCHAPPA
     GIDDAHANAMANNAVAR,
     AGE: 35 YEARS, OCC: AGRICULTURE,
     R/O: SAMBAPUR VILLAGE,
     TQ: GADAG, DIST: GADAG.
     5(c) RAMAPPA S/O KENCHAPPA
     GIDDAHANAMANNAVAR,
     AGE: 34 YEARS, OCC: AGRICULTURE,
     R/O: SAMBAPUR VILLAGE,
     TQ: GADAG, DIST: GADAG.
     5(d) NAGAVVA W/O SUBHAS IMMADI,
     AGE: 45 YEARS, OCC: HOUSEHOLD,
     R/O: HALLIKERI, TQ: ANNIKERI,
     DIST: DHARWAD.
     5(e) RATNAVVA W/O DEVEPPA SINTALKERI,
     AGE: 43 YEARS, OCC: HOUSEHOLD,
     R/O: UMACHAGI,
     TQ: RON, DIST: GADAG.
                               -3-




                                       WP No. 107716 of 2019


    5(f) GIRIJAVVA D/O MUTTAPPA VAGGAR,
    AGE: 40 YEARS, OCC: HOUSEHOLD,
    R/O: SHELAWADI, TQ: ANNIGERI,
    DIST: DHARWAD.
                                              ...RESPONDENTS
(BY SRI.S.G.KADADAKATTI, ADV. FOR R2 TO R4;
 NOTICE TO R5(b to f) ARE SERVED;
 R2 TO R5 ARE LRS. OF DECEASED R1)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE IMPUGNED ORDER DATED 21.03.2019 PASSED BY THE
PRINCIPAL    CIVIL   JUDGE    AND   JMFC   GADAG     IN
O.S.NO.110/2010 ALLOWING THE I.A.NO.13 FILED BY THE
DEFENDANT NO.2 TO 4 UNDER SECTION 151 OF CPC
TREATING ISSUE NO.2 WITH REGARD TO RES-JUDICATA AS
PRELIMINARY ISSUE AS PER ANNEXURE-A AND DISMISS THE
I.A.NO.13/2019 FILED BY THE DEFENDANTS NO.2 TO 4 IN THE
ENDS OF JUSTICE AND EQUITY.

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

                           ORDER

1. In this writ petition, the order of the Trial Court

by which it has taken the view that the issue relating res

judicata is to be treated as preliminary issue is called in

question.

2. In my view, the reasoning of the Trial Court in

holding that the issue relating to res judicata is to be

treated as preliminary issue cannot be found fault with,

WP No. 107716 of 2019

especially when the judgment rendered in the earlier suit

between defendants No.2 to 4 and the mother of the

petitioners is not in dispute.

3. Learned counsel for the petitioners however

submits that the petitioners would explore the possibility

of making an application for amending the prayer in the

plaint. Writ petition is dismissed.

4. However, if the petitioners were to make an

application for amendment of the plaint, the Trial Court

shall consider the same and pass appropriate orders in

accordance with law.

5. I.A.No.1/2021 is accordingly disposed of.

sd JUDGE

KGK