Karnataka High Court
Sri Kudli Sringeri vs Sri Ramshishuvihar on 18 February, 2025
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RFA No. 1817 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
REGULAR FIRST APPEAL NO. 1817 OF 2007
BETWEEN:
SRI KUDLI SRINGERI
MAHASAMSTANAM
KUDLI
SHIMOGA DISTRICT
REPRESENTED BY ITS
MATHADHIPATI SHRIMAD JAGADGURU
HIS HOLINESS, SRI SACHIDANAND
VALUKESHWAR SWAMIJI
(SRI SHARADA MAHAPEETHAM
AND SRIMAD JAGADGURU
SRI SRI SRI VIDYABHINAV
VIDYARANYA SWAMIJI OF KULDI SAMSTHANAM,
NOW RESIDING AT
NO.100, OPP: TO LALBAGH WEST GATE,
R.V.ROAD, BANGALORE 560027.
...APPELLANT
(BY SRI. KESHAV M. DATAR, ADV.)
AND:
1. SRI RAMSHISHUVIHAR,
NO.216/1, 5TH CROSS, 5TH MAIN ROAD,
CHAMRAJPET, BANGALORE - 560018,
BY ITS SECRETARY SRI. C.K.VENKATRAO.
2. CHAMRAJPET SRI RAM MANDIR
ASSOCIATION (REG.) REP. BY ITS
HON. SECRETARY
SRI. N. BINDUMADHAVA RAO,
NO.114, 5TH MAIN, 6TH CROSS,
CHAMARAJPET,
BANGALORE-560018.
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RFA No. 1817 of 2007
3. SRI DR. M. R. RAMANNA
PRESIDENT, CHAMARAJPET,
SRI RAM MANDIR,
NO.114, 5TH MAIN, 6TH CROSS,
CHAMARAJPET, BANGALORE-560018.
...RESPONDENTS
(BY SRI. N.R. NAGARAJ & ASSOCIATES, FOR R2,
R1 - SERVED AND UNREPRESENTED,
V/O DATED 21.03.2012, APPEAL AGAINST R3 IS ABATED.)
THIS REGULAR FIRST APPEAL IS FILED U/S.96 OF CPC
AGAINST THE JUDGMENT AND DECREE DT.21.4.2007 PASSED
IN O.S.NO.15441/2002 ON THE FILE OF THE V ADDL. CITY
CIVIL JUDGE, BANGALORE (CCH-13), DISMISSING THE SUIT
FOR PERMANENT INJUNCTION AND POSSESSION.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 07.02.2025 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT,
PRONOUNCED THE FOLLOWING:
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE G BASAVARAJA)
The appellant-plaintiff has preferred this appeal under
Section 96 of Code of Civil Procedure against the Order dated
21st April, 2007 passed by the V Additional City Civil Judge,
Bangalore in OS No.15441 of 2002, on Issue No.4 which
pertains to the principles of res judicata.
2. The parties in this appeal are referred to as per their
rank and status before the trial Court.
Facts of the case:
3. Plaintiff had filed suit on 11th March 2002, seeking
permanent injunction in respect of suit property against the
defendants. During the pendency of the suit, after appearance
of defendants, on 07th January 2005 an Application in IA.7 was
filed by the plaintiff under Order VI Rule 17 of Code of Civil
Procedure, 1908 to amend the plaint seeking to pass decree
directing defendants to vacate and handover the vacant
possession of the suit property to the plaintiff. The said
Application was resisted by defendants by filing statement of
objections.
3.1. Upon hearing argument on both sides, Application
IA.7 filed under Order VI Rule 17 of the Code of Civil Procedure
came to be allowed vide order dated 15th June 2005.
Accordingly, the amended plaint was also filed. Thereafter,
defendants have filed their additional written statement to the
amended plaint.
3.2. Brief facts, as per amended plaint, are that the suit
property has been given to plaintiff under registered Gift deed
dated 27th July 1960 effected between the plaintiff and Sri K.L.
Krishna Bhagavathar, which was registered in the office of the
Sub-Registrar, Bangalore. At that time, His Holiness Sri
Sachchidananda Bharati Swamiji was heading the plaintiff. In
the suit property, the owner Sri K.L. Krishna Bhagavathar had
built Sri Rama Mandira and on northern side, and a small
Shishuvihara was established. Further, some structures like
kitchen and go-down were also constructed by the said donor
only. The said property was gifted under gift deed dated 27th
July, 1960 and to run the said Shishuvihara and the Primary
School, a body is registered under Mysore Societies
Registration Act. The donor given up authority to the plaintiff
in respect of administrative and supervisory powers.
Therefore, it is the plaintiff which has got the authority
regarding administrative powers, to supervise the said
Shishuvihara and the Primary School.
3.3. This being the situation, defendant No.1 filed
Original Suit No.287 of 1961 against the plaintiff contending
that the suit property is a public premises and is likely to be
used for Defendant No.1-Society only, by excluding education
object. The Defendant No.1 obtained ex-parte decree without
enquiring as to whether such prayers are to be granted or not
under law and also as to whether there is jurisdiction to grant
relief vested or not. In the said Suit, in the order sheet dated
04th February 1964, it is recorded that "on perusal of the plaint
and affidavit, the suit is decreed". Thus, the order is blindly
passed without looking into documents, without evidence or
without reasons as required under the provisions of Code of
Civil Procedure. The said decree is without judgment, is not a
speaking order and is also in violation of Sections 33and 2(9) of
the Code of Civil Procedure and hence, the decree is illegal, null
and void and without jurisdiction.
3.4. The plaint averments in OS No.287 of 1961 disclose
that defendant No.1 is disputing the capacity to gift the
property under Gift Deed dated 27th July, 1960. No relief has
been prayed either for declaration or cancellation of Gift Deed
dated 27th July 1960. Thus, the said Gift Deed is in force till
today. The defendant No.1 has to run Shishuvihara in
permissive capacity and nothing else. The defendant No.1 has
not acquired right of ownership in the suit property. Further,
the defendant No.1 had not acquired right, title and interest
over the suit property except to manage Shishuvihara under
the supervision of plaintiff. Defendants cannot dispute the said
Gift Deed and its directives. Further, defendants cannot
exercise right of ownership over the suit property, in the sense,
the defendants are not having right of alienation, demolition
and construction in respect of suit property as their own. At no
point of time, defendants are vested with rights of ownership
over the suit property. Therefore, defendants have not
acquired right, title and interest in the suit property except to
manage the Shishuvihara as per the Gift Deed.
3.5. It is further stated that after disposal of Misc.
No.801 of 1987 on 27th March 1999, defendants appear to have
assumed themselves as if they are owners of the suit property.
Defendants 1 and 2, inter se, gone to the extent of entering
their names in the Corporation records. Further, defendants 2
to 4 have given representation to the Corporation of City of
Bengaluru for change of name from defendant No.1 to
defendant No.2 in respect of suit property, illegally, behind the
back of the plaintiff. The Bangalore City Corporation, appears
to have changed the name for tax purpose without noticing
formalities regarding legal transfer. Mere change of entry in
the Corporation records, cannot confirm any right, title interest
between defendants in favour of defendant No.2. Plaintiff is
not a party to the same. At the most, it is a clear case of
fraudulent act in creating false entries in Corporation records
and hence, the same is not binding on the plaintiff. The suit
property is a holy property consisting of Shishuvihara, Sri Rama
Mandira and a Primary School. In view of the dispute pending,
the plaintiff had not disturbed the running of Shishuvihara and
the Primary School. The plaintiff had made arrangements to
look after Sri Rama Mandira. But now, recently, defendants
have been obstructing transactions of Sri Rama Mandira under
the guise of above facts. The defendants have nothing to do
with the transactions and management of Sri Rama Mandira in
the suit property, as it is only the plaintiff which is looking after
it. The defendant No.1 was allowed to manage Shishuvihara,
which was and is in the suit property, under the supervision of
plaintiff. Therefore, the defendant No.1 cannot throw away the
management of the said education institution in the suit
property to defendants 2 to 4 according to whims and fancies
illegally, and also without the consent of the plaintiff.
3.6. It is submitted that even in the decree passed in
Original Suit No.287 of 1961 by the City Civil and Sessions
Judge Bangalore, the defendant No.1 in suit OS No.15441 of
2002, has only got the right of use of the suit property and the
plaintiff has got right to secure peaceful possession. Now,
defendants 2 to 4 are claiming that the defendant No.1 having
merged with defendant No.2, they have got right over the suit
property. The alleged merger of Societies is not in accordance
with the provisions of the Karnataka Societies Registration Act,
1960 and Rules 1961. Hence, defendants 2 to 4 have no valid
right, title or interest to continue in possession of the suit
property and to put up permanent structure on it.
3.7. The cause of action for this Suit arose on 07th
January, 2002 when defendants started to demolish and to put
up new construction in the suit property. On all these grounds,
it was sought for permanent injunction against the defendants
from demolishing the existing structure in the suit property and
restraining to put up any construction in the suit property, as
the defendants are not owners of the suit properly. It was also
prayed for issue of permanent injunction against the
defendants restraining them from interfering with management
and transactions of Sri Rama Mandira in the suit property and
to pass decree, directing the defendants to vacate and
handover vacant possession of the suit property to the plaintiff.
On all these grounds, it was sought to decree the suit.
3.8. Defendant No.2 has filed written statement and also
additional written statement in which it is stated that the suit is
not maintainable at all on law or on facts. Doctrine of res
judicata is squarely attracted in view of the judgment and
decree passed in Original Suit No.287 of 1961 between the
same parties in respect of same subject matter and hence the
suit is liable to be dismissed on this ground alone. The plaintiff
is incompetent to institute the suit. The trial Court has not
framed any issue and none of the prayers sought for, can be
granted by the Court. The verification made by the plaintiff is
not in accordance with law and plaint has not been signed and
verified as acceptable to the judicial proceedings. Hence it is
contended that the plaint is liable to be rejected. The suit for
bare injunction against the defendants is not maintainable
without the relief for declaration. The plaint itself is liable to be
rejected on uncertainty of ownership of the Mutt and its
properties. It is admitted that defendant No.1 had filed suit in
OS No.287 of 1961. The mutation had been in the name of
defendant No.1 ever since the assessment came to be made by
the Bengaluru City Corporation, which subsequently, exempted
from paying the tax under Section 110 of Karnataka Municipal
Corporation Act, 1976. Thus, the statement to the effect that
the plaintiff Junior Swamiji came to know as to earlier
judgment and decree, is far from truth. The statement
imputing allegations of collusion and cheating, is beyond the
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scope of this suit and the plaintiff-Institution has to agitate
before a separate Forum if it has got any grievance.
3.9. It is contended that the donor Sri K.L. Krishna
Bhagavathar had no right to gift. The alleged Gift Deed dated
27th July 1960 is void and non-est in the eye of law. The
parties to Suit OS No.287 of 1961 is bound by the decree
passed therein unless the same is set aside by a competent
Forum. The defendant No.1 herein had clearly taken a
contention that the Gift Deed dated 27th July 1960 through
which the plaintiff seeks to claim some right in the suit
property, is void ab-initio as donor-Sri K.L. Krishna
Bhagavathar, had no personal right in the suit property and
hence could not have executed the Gift Deed as an individual.
As the so called Gift Deed had been executed by an
incompetent person who had no right and title in himself to the
suit property, could not pass on the same to the donee therein.
Hence, the Gift Deed which is void ab-initio and would not vest
the plaintiff with any right or title over the suit property and the
same need not be declared as void or cancelled again.
3.10. Further, it is stated that the suit property was
gifted for specific purpose of education, philanthropic and
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charitable activities under the agies of Chamarajapet Sri Rama
Mandira by virtue of a Gift Deed dated 02nd May 1954,
registered in the office of the Sub-Registrar, Bangalore city on
06th May 1954 as No.275/54-55 of Volume 1339 at Pages 96-
98 of Book-1 executed jointly by Smt. Nanjamma and Sri
Lakshmipathaiah. The recitals of the donors clearly state that a
site measuring East-West 175 feet and North-South 108 feet
out of the entire property bearing number 48 (new number 54),
5th Main, Chamarajapet, Bangalore, was gifted for a specific
purpose, which was received by one Sri K.L. Krishna
Bhagavathar. The purpose was specifically mentioned, viz. to
serve the general public, who are interested in the devotional
and social activities under the auspicious umbrella of Lord Sree
Rama. This fact of gift of the suit property to the public was
very well known to the donee Sri K.L. Krishna Bhagavathar
himself. This specific knowledge of the absence of personal
right, title and interest has been made known by Sri K.L.
Krishna Bhagavathar through binnavattale dated 21st April 1957
given to the then Minister of Finance, Government of Mysore.
In the said binnavattale, Sri K.L. Krishna Bhagavathar describes
himself as a Manager of Sri Rama Mandira and the property has
been donated by the donors for the purpose of Sri Rama
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Mandira, to run Shishuvihara and other activities. This, Sri K.L.
Krishna Bhagavatar himself knew, that he had no personal
right, title or interest over the suit property. Hence, gift made
by him to the plaintiff discreetly is a void document. It is
contended that the defendant No.1 was compelled to file a suit
in OS No.287 of 1961 as a registered Society against the donor
Sri K.L. Krishna Bhagavathar, and also the plaintiff. The relief
sought for in the Suit is as under:
"a) That the Plaintiff has a right of user of the entire
premises described in the plan 'B' including the
portions A, B, E, F and P, Q, S, R, that is to say, of
the entire premises A,B,C,D, in the plan, for the
benefit of the members of the public at large.
b) That the defendants 1 and 2 have absolutely no
personal right in any part of the said premises.
c) That the order of the City Magistrate in
Cr.Mis.501/60 dated 21-2-1961 is void.
d) That defendants 1 and 2 be restrained by a
permanent injunction from interfering with the right
of user by plaintiff of the premises as set out in
clause (a) supra.
e) That defendants 1 and 2 be directed to secure
peaceful possession of the said right of user by the
plaintiff.
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f) That defendants be directed to pay the plaintiff
costs of the suit."
3.11. The trial Court decreed the suit ex-parte on 04th
February 1964. Against this, plaintiff preferred miscellaneous
petitions. All of them were dismissed affirming the decree
passed in OS No.287 of 1961. Neither the plaintiff nor his
donor had any right, title or interest over the suit property. The
defendant No.1 passed Resolution on 03rd May 1992. Sree
Rama Shishuvihara itself merged into Chamarajapet Sri Rama
Mandira Association. Thus, all the assets and liabilities got
merged into the Chamarajapet Sri Rama Mandira Association,
arraigned as the defendant No.2. The defendant No.1 is no
more in existence consequent upon the merger. The Bangalore
City Corporation has transferred the suit property from Sree
Rama Shishuvihara to Chamarajapet Shri Rama Mandira
Association in its records. Thus, there is no change of hands,
but only the change in name. Further, it is submitted that the
defendant No.2 is a registered Association under the Karnataka
Societies Registration Act, running Shishuvihara, Primary
School and also High School under its administration and
management. Classes are being conducted in the suit premises
and are recognised by the Government of Karnataka. In fact,
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both Shishuvihara and the Primary School are fully aided and
High School is partly aided. As the number of students
increased to 850, because of lack of space, classes could not be
run in a conducive atmosphere. Hence, by raising donations
from the public and also from the paltry donations made from
the parents of the students, 4-5 classrooms are being added by
replacing the existing structure which had a tiled roof. The
entire student, community of the Institution, hale from lower
strata of the society who cannot afford to join expensive
modern educational institutions. The construction of
classrooms is with the sole intention of giving a better
accommodation to poor students. If this act of providing basic
education to the poor students is considered as illegal and a
cheating act, then nothing in the life could be considered as
just and legal. There is no cause of action for the suit.
3.12. It is also contended that the relief sought for is hit
by Law of Limitation. Admittedly, in the suit the plaintiff had
sought for possession through amendment dated 28th June
2005 by virtue of order dated 23rd June 2005. The possession
and the title has been denied as early as in 1961, that is
beyond 44 years. Admittedly, for possession of immovable
property or any interest based thereon, an alleged title
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governed by Article 65, stipulate the period of Limitation to be
twelve years. The plaintiff has lost its right to seek for the
relief of possession. The court fee paid by the plaintiff is
grossly insufficient and improper. Further, denying all other
averments made in the plaint, as well as in the amended plaint,
it was sought for dismissal of the suit with exemplary costs.
4. Based on the pleadings, the trial Court framed four
issues on 02nd July 2003, and after amendment of the plaint,
the trial Court has framed additional four issues. Among them,
the trial Court heard the arguments on Issue No.4 and
dismissed the suit. Being aggrieved by the order passed by the
trial Court on Issue No.4, plaintiff has preferred this appeal.
Submissions advanced on behalf of the Appellant:
5. Sri Keshav M. Datar, learned Counsel appearing for
the Appellant-plaintiff, submitted that the trial Court has
committed an error in passing the order on Issue No.4 without
recording evidence. Initially, the respondent had filed an
application for rejection of the plaint which came to be rejected
by the trial Court vide order dated 18th February 2003, and the
same was confirmed in Civil Revision Petition No.1478 of 2003,
wherein the Co-ordinate Bench of this Court observed that
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there are no grounds to reject the plaint under Order VII Rule
11 of the CPC. The trial Court has once again taken up the
issue of res judicata as a primary issue and dismissed the suit
on that ground alone. The trial Court has committed an error
in holding that the present suit is barred by principles of res
judicata.
5.1. Learned Counsel submitted that the present Suit
was initially filed for permanent injunction and the said Suit has
been subsequently amended seeking for possession of the
property. The earlier Suit and the findings thereon have no
relevance to the present suit for the reason that the suit is filed
against Sree Rama Shishuvihara in OS No.287 of 1961 by the
defendant only for permanent injunction. The present suit is
filed for possession and permanent injunction, and this suit is
based on the title and the plaintiff is entitled to claim
possession of the property, as the plaintiff is the rightful owner
of property by virtue of registered gift deed dated 02nd May
1954 and the same is not challenged by defendants. Plaintiff in
OS No.287 of 1961 has not produced any document to show
that it is the owner of the suit property and the order dated
04th February 1964 passed in OS No.287 of 1961 is an ex-parte
decree, is passed without evidence and is not a speaking order.
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This suit OS No.287 of 1961 is only for bare injunction against
the defendants and is not for declaration of title. The cause of
action and issues involved are different. The different cause of
action between the same parties, do not fall within the scope of
res judicata. The principles of res judicata do not bar the new
suit, if it involves a distinct cause of action, even if it is
between the same parties.
5.2 Further, the learned Counsel would submit that the
ingredient of Section 11 of Code of Civil Procedure, 1908 are
not applicable for the reason that no issues are framed in OS
No.287 of 1961 and no evidence is recorded and that there is
no speaking order. The same is an ex-parte decree, and hence
he sought for setting aside the order impugned passed by the
trial Court and remand the matter to the trial Court to dispose
of the case on the remaining issues. To substantiate his
argument, he has relied upon judgment of Hon'ble Supreme
Court in the case of PANDURANGA RAMACHANDRA MANDALIK
v. SHANTIBAI RAMACHANDRA GHATGE AND OTHERS reported
in 1989 SUPP(2) SCC 627. The learned Counsel has also
produced copy of the entire order sheet pertaining to OS
No.287 of 1961 on the file of First Munsif at Bangalore.
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Submissions advanced on behalf of the Respondents:
6. As against this, Sri N.R. Nagaraj learned Counsel
appearing for Defendant No.2, would submit that the alleged
gift deed said to have executed by donor on 06th May 1954 and
another Gift deed dated 27th July 1960 and also the rectification
deed dated 22nd August 1960 as to the delivery possession, are
not sustainable under law for the reason that there is no
reference as to acceptance of Gift Deeds dated 06th May 1954,
and 27th July 1960 executed by the donor, as required under
Section 122 of the Transfer of Property Act, 1882. Defendants
have obtained decree against the plaintiff in OS No.287 of
1961. The plaintiff has filed several miscellaneous applications
for restoration of the ex-parte decree passed against plaintiff.
All miscellaneous applications were dismissed. Finally, the
Misc.No.801 of 1987 was also dismissed on merits. Plaintiff has
not preferred any appeal against the order passed in
Misc.No.801 of 1987. Hence, the principle of res judicata is
applicable, as the plaintiff, instead of preferring an appeal, has
filed a suit. The subject matter of the property in question and
the subject matter of the property in OS No.287 of 1961, are
one and the same. The trial Court has properly appreciated the
material placed on record and dismissed the suit as the suit is
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barred in view of doctrine of res judicata. To substantiate his
arguments learned Counsel has relied upon the following
decisions:
1. R. UNNIKRISHNAN AND ANOTHER v. V.K.
MAHANUDEVAN AND OTHERS (AIR 2014 SCW
596);
2. M NAGABHUSHANA v. STATE OF KARNATAKA
AND OTHERS (AIR 2011 SC 1113);
3. RAJINDER KUMAR v. KULDEEP SINGH (2014
AIR SCW 1121);
4. SRI ARALAPPA v. SRI JAGANNATH (ILR 2007
KAR. 339)
7. Having heard the arguments on both sides and on
perusal of material is placed before the Court, the following
points would arise for my consideration:
1. Whether the trial Court is justified in dismissing
the suit on the ground that the suit is barred by
principles of res judicata?
2. What order?
8. My answer to the above points are:
Point number one: in the negative;
Point number two: as per final order
9. I have carefully gone through the materials placed
before this court. Before appreciating the material on record, it
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is relevant to mention here as to the provisions of Section 11 of
Code of Civil Procedure, 1998. The same reads thus:
"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.
Explanation I.- The expression "former suit" shall
denote a suit which has been decided prior to a suit in
question whether or not it was instituted prior thereto.
Explanation II.- For the purposes of this section,
the competence of a Court shall be determined
irrespective of any provisions as to a right of appeal
from the decision of such Court.
Explanation III.- The matter above referred to
must in the former suit have been alleged by one party
and either denied or admitted, expressly or impliedly, by
the other.
Explanation IV.- Any matter which might and
ought to have been made ground of defence or attack in
such former suit shall be deemed to have been a matter
directly and substantially in issue in such suit.
Explanation V.- Any relief claimed in the plaint,
which is not expressly granted by the decree, shall for
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the purposes of this section, be deemed to have been
refused.
Explanation VI.- Where persons litigate bona fide
in respect of a public right or of a private right claimed
in common for themselves and others, all persons
interested in such right shall, for the purposes of this
section, be deemed to claim under the persons so
litigating .
Explanation VII.-- The provisions of this section
shall apply to a proceeding for the execution of a decree
and references in this section to any suit, issue or
former suit shall be construed as references,
respectively, to a proceeding for the execution of the
decree, question arising in such proceeding and a former
proceeding for the execution of that decree.
Explanation VIII.- An issue heard and finally
decided by a Court of limited jurisdiction, competent to
decide such issue, shall operate as res judicata in a
subsequent suit, notwithstanding that such Court of
limited jurisdiction was not competent to try such
subsequent suit or the suit in which such issue has been
subsequently raised."
10. The doctrine of res judicata is a legal doctrine that
prevents the same case from being tried again by the same
parties. It is based on the idea that no one should be forced to
go through the same legal process twice for the same issue.
The Hon'ble Supreme Court, in the case of SATHYADHYAN
GOSHAL v. DEORAJIN DEBI reported in AIR 1960 SC 941, has
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observed that the principle of res judicata applies when the
cause of action, the issues and the parties are the same.
However, it also emphasises that different cause of action
between the same parties do not fall within the scope of res
judicata. In the said case, the Supreme Court has held that res
judicata does not bar a new suit, if it involves a distinct cause of
action, even if it is between the same parties. The Hon'ble
Supreme Court, in any number of cases, has clarified that the
principles of res judicata applies only in the matters if the two
suits are substantially the same and if the parties are same, but
the cause of action or the subject matter is different, the
principle of res judicata does not apply.
11. The Hon'ble Supreme Court, in the decision of
PANDURANG RAMCHANDRA MANDLIK (supra), at paragraph 19
of the judgment, has observed as under:
"19. Admittedly the appellants' application was
decided ex parte. It is true that ex parte decrees operate
to render the matter decided res judicata, and the
defendants' failure to appear will not deprive the plaintiff
of the benefit of his decree. But in the case of a suit in
which a decree is passed ex parte, the only matter that
can be 'directly and substantially in issue' is the matter in
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respect of which relief has been claimed by the plaintiff
in the plaint. A matter in respect of which no relief is
claimed cannot be 'directly and substantially in issue' in a
suit in which a decree is passed ex parte though the
court may have gone out of its way and declared the
plaintiff to be entitled to relief in respect of such matter.
In the instant case applying the above principle the order
having been passed ex parte, assuming the doctrine of
res judicata applied, it could be only to the extent of the
appellants having been not entitled to possession at the
relevant time; and it could not be extended logically to
the issue whether the defendants were tenants under the
Act."
12. Considering the facts and circumstances of the above
case and keeping in mind Section 11 of Code of Civil Procedure,
as also the decisions of Hon'ble Supreme Court stated supra, I
am inclined to grant a limited indulgence in the matter as under
for the following:
Reasons:
13. Admittedly, the suit in OS No.287 of 1961
on the file of the First Munsiff at Bangalore, is filed by
Shri Rama Shishuvihara against the defendant
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Sri K.L. Krishna Bhagavathar and another on 11th March 1961,
seeking following relief:
"a) for declaration that the plaintiff has a right of user of
the entire premises described in the plaint "B" to the
plan including the portion ABEF and PQSR of the
entire premises in ABCD in the suit plan for the
benefit of the public.
b) that the defendants have no personal rights in the
said premises.
c) that the order of City Magistrate in Cr.Mis.501/60 dt
21.2.61 is void.
d) for permanent injunction to restrain the defendants
from interfering with the right of user by plaintiff.
e) that the defendants be directed to secure peaceful
possession of the said right of user.
f) for costs."
14. The trial Court has passed ex-parte decree on 04th
February 1964, which reads as under:
"perused the plaint and affidavit. The suit is
decreed exparte as follows:-
a) The plaintiff has a right of use of the entire
premises described in the plan 'B' including the
portions A B E F and P, Q, S, R that is to sky, of the
entire premises ABCD in the plan, for the benefit of the
members of the public at large;
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b) The defendants 1 and 2 have absolutely no personal
right to any part of the said premises.
c) The order of the City Magistrate in Cr.Mis.501/60
dated 21.2.64 is void.
d) The defendants 1 and 2 are restrained by means of
a permanent injunction from interfering with the right
of use by plaintiff of the premises as set out in clause
(a) supra.
e) The defendants 1 and 2 are directed to secure
peaceful possession of the said right of user to the
plaintiff.
f) The defendants should pay costs of the suit to the
plaintiff Advocates fee Rs.15/-."
15. It is not in dispute that the defendant in OS No.287
of 1961 had filed Misc. No.38 of 1964 to set aside the ex-parte
decree passed in OS No.287 of 1961 and the same was
dismissed for default. Misc. No.358 of 1966 was filed seeking
to set aside the dismissal order in Misc. No.38 of 1964.
MA No.62 of 1983, allowed on 08th December 1986, thereby
Misc. No.55 of 1968 was restored. The said Misc.No.55 of 1968
was allotted a new number Misc.No.801 of 1987. In the said
miscellaneous, evidence was recorded. The same was
dismissed on 27th March 1999. The plaintiff-appellant has not
challenged the order passed in Misc.No.801 of 1987, however,
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filed a suit for permanent injunction against the defendants,
restraining defendants from demolishing the existing structure
in the suit property and restraining from putting up any new
construction in the suit property, as defendants are not owners
of the suit property and also restraining defendants from
interfering with enjoyment and transactions of Sri Rama
Mandira in the suit property and to pass decree directing the
defendants to vacate and handover the vacant position of suit
property to the plaintiff.
16. A plain reading of the of the plaint in OS No.15441 of
2002 filed by the present plaintiff, makes it crystal clear that
the plaintiff has sought for possession of suit property based on
title. Consequently, has also sought for permanent injunction
against the defendants. The plaintiffs in OS No.287 of 1961
have not sought for declaration of title in respect of the suit
property against defendants, whereas the present suit
No.15441 of 2002 filed by the plaintiff is for possession and
permanent injunction in respect of the suit property.
17. During the pendency of the suit, a prayer was made
to amend the plaint. The defendants who are respondents,
have filed Application under Order VII Rule 11 of Code of Civil
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Procedure for rejection of plaint that the suit is not
maintainable as the suit is barred by principles of res judicata
and estoppel. That application was rejected by the trial Court.
Being aggrieved by the said order dated 18th February 2003,
the present respondents have preferred Civil Revision Petition
before the court in No.1478 of 2003, and the same was
dismissed by order dated 12th August 2004, wherein the co-
ordinate Bench of this Court has observed as under:
"It is well settled that while considering the
application for rejection of the plaint under order 7 Rule
11, only the averment made in the plaint has to be
looked into and the defence of the defendants and the
averment made in the written statement and the
documents produced by the defendant would not be
material while considering the application under order 7
rule 11 CPC. However, in the present case, the Trial
Court having regard to the above averment made in the
plaint has come to the conclusion that the question as to
whether the plaintiff is estopped from filing the suit and
as to whether the suit is barred by principles of
resjudicata, which is fact and law have to be gone in to
during the trial. In the said suit and the averment made
in the plaint by itself does not make out a ground to
show that the suit itself is barred in view of the
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averment made in the plaint itself. The learned counsel
appearing for the petitioner has taken through the
averment made in the plaint in the present suit OS
No:15441/02, and it is clear from the averment made in
the plaint itself, that the said averments by itself do not
make out any bar in filing the present suit for bare
injunction against the defendants to restrain them from
demolishing the existing structures in the suit property
and restrain them from putting up new construction in
the schedule property as the cause of action of the
plaintiff is based upon the fact that the earlier
proceedings have gone on even after the death of the
Swamiji on 6.11.1970 and on the basis of the gift deed
dt.27.7.1960 wherein the schedule property has been
gifted in favour of the plaintiff. These are the questions
of facts that are to be established during trial and
wherefore, the Trial Court has rightly held that no
ground is made out for rejection of plaint under order 7
Rule 11 CPC and the contention of the defendant has to
be gone into during Trial and the said finding of the Trial
Court cannot said to be suffering from any error of
jurisdiction, illegality or material irregularity to call for
interference in this revision. Accordingly, I hold that
there is no merit in this revision and pass the following
order:
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The Civil Revision Petition is dismissed. However,
the Trial Court is directed to dispose of the suit
expeditiously and not later than 8 months from the date
of receipt of this order or from the date of production of
the certified copy of this order or whichever is earlier."
18. Though the Co-ordinate Bench of this Court held
that no ground is made for rejection of plaint under Order VII
Rule 11 of Code of Civil Procedure and the contention of the
defendant has to be gone into during trial and the finding of the
trial Court cannot be said to be suffering from any error of
jurisdiction, legality or material irregularity that call for
interference in this Revision and accordingly dismissed the
Revision Petition filed by the defendants. The trial Court has
ignored the direction issued by the Co-ordinate Bench of this
Court.
19. The reasons assigned by the trial Court in this regard
is that the question of possession was purely factual and
therefore, the trial was necessary. But, after amending the
plaint, when the plaintiff sought for possession, the whole
circumstance changed. Here, since the possession is based on
title, unless the title is established, the plaintiff will not be
entitled for possession since the question of title was decided
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against the plaintiff in OS No.287 of 1961, obviously there
remains nothing to be decided in this suit once again. This
finding of the trial Court is apparently contrary to the facts of
the case for the reason that the plaintiff has not sought for
relief of declaration on title. The Suit is for bare injunction.
The trial Court has not given any finding as to the title of the
suit property. No issues were framed in the suit, no evidence
recorded, the trial Court has passed ex-parte decree in OS
No.287 of 1961 without passing any considered order.
However, the trial Court has observed that the question of title
was decided against the plaintiff in OS No.287 of 1961, is not
correct and proper. Therefore, the same is not sustainable.
20. Prior to amendment of the plaint as to seeking of
possession of the suit property, the trial Court has held that the
suit is maintainable and accordingly Application filed under
Order VII Rule 11 of the Code of Civil Procedure by the
defendants was rejected. The same was confirmed by the Co-
ordinate Bench of this Court in Civil Revision Petition No.1478
of 2003. After amendment of the plaint, the plaintiff sought for
possession of suit property based on title and permanent
injunction against the defendant. Therefore, the nature of the
suit, cause of action for the suit and cause of action for the
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earlier Suit No.287 of 1961, are entirely different. ,Therefore, in
view of the decision of Hon'ble Supreme Court, in the case of
SATHYADHYAN GOSHAL (supra) that different cause of action
between the same parties do not fall within the scope of res
judicata and the principles of res judicata does not bar new
suit, if it involves new and distinct cause of action, even if it is
between the same parties. Therefore, the nature of the suit,
cause of action for the suit and cause of action for the earlier
OS No.287 of 1961 are entirely different.
21. The subject matter of the present suit has not been
directly and substantially in issue in the former suit i.e. OS
No.287 of 1961 between the same parties.
22. Therefore, the principle of res judicata, as
contemplated under Section 11 of Code of Civil Procedure,
1908, is not applicable to the case on hand. On examination of
the entire material placed on record, I am of the considered
opinion that the defendants have failed to establish that the
suit is barred by principles of res judicata. Accordingly, the
order impugned passed by the trial Court is not justified and
sustainable in law. The decisions relied upon by the learned
Counsel for the respondent-defendants will not enure to the
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benefit of defendants, as the facts of the present case and the
facts the cases on which reliance is placed, are entirely
different. Accordingly, I answer point number one in the
Negative.
23. For the aforesaid reasons and discussions, I
proceeded to pass the following:
ORDER
i) Appeal is allowed;
ii) Order dated 21st April, 2007 passed on Issue
No.4 in OS No.15441 of 2002 by the V
Additional City Civil Judge, Bangalore, is set
aside;
iii) Matter is remitted back to the trial Court to
dispose of the same on remaining issues, in
accordance with law;
iv) Parties are put to notice to appear before the
trial Court on 05th March, 2025;
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v) The trial Court is requested to dispose of the
case as expeditiously as possible and in any
event not later than one year from the date
of appearance of parties.
Costs made easy.
Sd/-
(G BASAVARAJA)
JUDGE
lnn
