Karnataka High Court

Ramesh S/O Hanamanth Balulad vs Laxmappa Alias Laxman S/O Hanamant ... on 12 February, 2024

Author: Suraj Govindaraj

Bench: Suraj Govindaraj

                                                  -1-
                                                         NC: 2024:KHC-D:3122
                                                          WP No. 100170 of 2023




                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                              DATED THIS THE 12TH DAY OF FEBRUARY, 2024
                                                BEFORE
                              THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
                               WRIT PETITION NO. 100170 OF 2023 (GM-CPC)
                      BETWEEN:

                      RAMESH S/O. HANAMANTH BALULAD,
                      AGED 38 YEARS, OCC: AGRICULTURE,
                      R/O. KISHORI, TALUK: MUDHOL,
                      DISTRICT: BAGALKOT.
                                                                       ...PETITIONER
                      (BY SRI. M.B. HIREMATH,
                          SRI. UMESH P. HAKKARAKI,
                          SRI. ANKIT R. DESAI & MISS GAYATRI. S.R., ADVOCATES)

                      AND:

                      1.   LAXMAPPA @ LAXMAN S/O. HANAMANT BALULAD,
                           AGED ABOUT 33 YEARS, OCC: AGRICULTURE,
                           R/O. KISHORI, TALUK MUDHOL,
                           DISTRICT: BAGALKOT-583101.

                      2.   HANAMANT S/O. RANGAPPA BALULAD,
                           AGED ABOUT 73 YEARS, OCC: AGRICULTURE,
                           R/O. KISHORI, TALUK MUDHOL,
         Digitally
         signed by
         GIRIJA A
                           DISTRICT: BAGALKOT-583101.
GIRIJA A BYAHATTI
BYAHATTI Date:
         2024.02.13
         15:00:43
         +0530        3.   SMT. ANASUYA W/O. HANAMANT BALULAD,
                           AGED ABOUT 69 YEARS, OCC: HOUSEHOLD WORK,
                           R/O. KISHORI, TALUK MUDHOL,
                           DISTRICT: BAGALKOT-583101.

                      4.   BASAPPA @ BASAVARAJ S/O. HANAMANT BALULAD,
                           AGED ABOUT 45 YEARS, OCC: AGRICULTURE,
                           R/O. KISHORI, TALUK MUDHOL,
                           DISTRICT: BAGALKOT-583101.
                                                                   ...RESPONDENTS
                      (BY SRI. GIRISH A. YADWAD,ADV. FOR R1 TO R4)
                                                   ---
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                                         NC: 2024:KHC-D:3122
                                           WP No. 100170 of 2023




     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
WRIT OF CERTIORARI QUASHING THE ORDER DATED 25.11.2022
PASSED BY THE ADDL. SENIOR CIVIL JUDGE AND JMFC, MUDHOL
IN O.S.NO.78/2017 ON I.A.NO.IV WHICH IS PRODUCED AT
ANNEXURE-H AND CONSEQUENTLY ALLOW I.A.NO.IV.

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

                              ORDER

1. The petitioner is before this Court seeking for the

following reliefs:

a) Issue writ of certiorari quashing the order dated 25.11.2022 passed by the Addl. Senior Civil Judge and JMFC, Mudhol in O.S.No.78/2017 on I.A.No.IV which is produced at Annexure-H and consequently allow I.A.No.IV.

b) Issue such other writ or order as deemed fit in the interest of justice and equity.

2. The petitioner is defendant No.4 in O.S.No.78/2017

and defendant No.1 in O.S.No.38/2017.

O.S.No.38/2017 had been decreed vide judgment

dated 08.04.2021. In the subsequent suit filed in

O.S.No.78/2017, an application under Section 11 of

the Code of Civil Procedure had been filed,

contending that the judgment in O.S.No.38/2017

would act as res judicata and as such, the said

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aspect would have to be decided as a preliminary

issue in O.S.No.78/2017.

3. The trial Court vide the impugned order dated

25.11.2022, on the ground that the judgment in

O.S.No.38/2017 had not been produced, on the basis

of the issues framed in O.S.No.38/2017, came to a

conclusion that the issues are totally different and as

such rejected the application. It is challenging the

same the petitioner is before this Court seeking for

the aforesaid reliefs.

4. Sri. Mallikarjunswamy B. Hiremath, learned counsel

for the petitioner, would submit that there is an

adjudication of the matter in O.S.No.38/2017,

inasmuch as the petitioner was defendant No.1

therein who had filed a counterclaim seeking for 1/5th

share in the properties therein which came to be

rejected by the trial Court and the said finding would

equally apply to the present case.

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5. Sri. Girish Yadwad, learned counsel for respondents

No.1 to 4 would submit that, there is no adjudication

insofar as the claim of the petitioner, who is

defendant No.1 in O.S.No.38/2017 is concerned,

inasmuch as the said counterclaim was dismissed on

technicalities and not on merits, and as such, would

not operate as res judicata.

6. Heard Sri. Mallikarjunswamy B. Hiremath, learned

counsel for the petitioner and Sri. Girish Yadwad,

learned counsel for respondents No.1 to 4. Perused

the records.

7. Section 11 of the Code of Civil Procedure reads as

under:

Section 11. Res Judicata No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

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8. For Section 11 of the Code of Civil Procedure to

apply, there has to be a decision of a prior court as

regards the matters substantially in issue on merits.

That is to say, there has to be an adjudication of the

matters substantially in issue in the subsequent suit

already made in the prior suit.

9. Paragraph 23 of the judgment dated 08.04.2021 in

O.S.No.38/2017, is reproduced hereunder for easy

reference:

23. Issue Nos.4 and 6:- These two issues are inter related to each other hence I take these issues together for discussion. The defendant No.1 contended that in entire A and C schedule properties he is having 1/5th share and in item Nos. 1, 3 and 5 of B schedule properties he is having 1/5th share and accordingly by way of counter claim he claimed his 1/5th share in the above said properties. In this present case on hand when the defendant No.1 filed written statement he was not sought relief of partition of his 1/5th share by way of counter claim. Thereafter defendant No.1 was filed additional written statement and in that additional written statement he claimed the partition of his 1/5th share in entire A and C properties and in item Nos. 1, 3 and 5 of schedule B properties. Under Code of Civil Procedure there is no provision to file additional written statement without amendment to the plaint. Further if the defendant No.1 wants to claim counter claim he has to claim along with is written statement. But in this present case on hand along with written statement of defendant No.1 he has not claimed the partition of his 1/5th

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share. Further if at all he is having 1/5th share then burden is on him to prove that entire A and C schedule properties and item Nos.3 and 5 of B schedule property are joint family properties to him and plaintiffs and defendant No.9 but in this regard defendant No.1 has not at all adduced any acceptable evidence. Further the documents which are produced by defendant No.1 marked as per Ex.D.1 to 56 does not show that the entire A and C properties are the joint family properties to him and plaintiffs and defendant No.9. Hence I am of the considered view that without any evidence and without any specific pleadings the defendant No.1 is not entitled for 1/5th share in entire A and C schedule properties and in item Nos.1, 3 and 5 of B schedule properties and the defendant No.1 is not entitled for relief sought by him in the counter claim. Hence I answer issue Nos.4 and 6 in the Negative.

10. A perusal of the above would indicate that the

counterclaim has been rejected only on technicalities.

There is no adjudication, consideration of the

evidence on record by the trial Court in

O.S.No.38/2017.

11. Furthermore, the application under Section 11 of the

Code of Civil Procedure has been filed by the very

same person whose counterclaim has been rejected

in O.S.No.38/2017, in order to try and take

advantage of his own claim being rejected, which

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cannot be permissible under Section 11 of the Code