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2010 DIGILAW 705 (KAR)

Alamengada Muddappa v. Alamengada Kuttappa

2010-06-11

A.N.VENUGOPALA GOWDA

body2010
JUDGMENT :- (This M.S.A. is filed under Order 41 Rule 1(u) of CPC against the judgment and decree dated 29.8.2007 passed in R.A.No.4/2000 on the file of the Ad-Hoc Dist. Judge, FTC, Virajpet, allowing the appeal and setting aside the judgment and decree dt. 30.11.1999 passed in O.S.No.262/1989 on the file of the Addl. Civil Judge (Jr.Dn), Virajpet.) Respondents 1 and 2 herein, instituted O.S.262/1989 in the Court of Civil Judge (Jr.Dn.), Virajpet, against the appellants and respondents 3 to 8 herein. The suit is for declaration and possession of plaint schedule properties. The defendants filed written statement and contested the suit. Learned Trial Judge raised 10 issues. Issue Nos. 4 and 6 were treated as preliminary issues. The suit was dismissed as barred by principles res-judicata, by answering issue No.6. 2. Aggrieved, the plaintiffs filed R.A.4/2000 on the file of the Dist. Judge/FTC – Virajpet. Considering the grounds raised in the appeal memo and the contentions urged for consideration by the learned counsel, the learned appellate Judge raised 3 points for consideration. It was held that, principles of res-judicata cannot be made applicable to the case on hand. However, keeping the said point open to the parties to agitate before the Court below and since the Trial Court had not answered all the issues, the impugned judgment/decree was reversed, the appeal was allowed and the matter was remitted back to the Trial Court for fresh disposal by recording findings on all issues including issue No.6. 3. Aggrieved, the defendants 1 to 5 in the suit, have preferred this miscellaneous second appeal. Sri G. Balakrishna Shastry, learned advocate appearing for the appellants, would firstly, contend that, the First Appellate Court has erred in law in not holding that O.S.262/89 is not maintainable, since the grievance sought to be raised therein relates to the execution, discharge and satisfaction of the decree dated 20.03.1972 passed in O.S.24/1969. Secondly, the lower appellate Court has erred in holding that, evidence need to be recorded on all the issues, when admittedly issue No.7 relating to valuation i.e., payment of Court fess was already decided by the Trial Court and no grievance was made in the appeal as regards issue No.7. Secondly, the lower appellate Court has erred in holding that, evidence need to be recorded on all the issues, when admittedly issue No.7 relating to valuation i.e., payment of Court fess was already decided by the Trial Court and no grievance was made in the appeal as regards issue No.7. Lastly, the First Appellate Court has erred in law in overlooking the basic facts that, the plaintiffs and defendants were co-sharers, properties were joint family properties and were subject matter of consideration in O.S. 24/1969 for partition and separate possession and hence, the cause of action alleged in the suit is during the pendency of the final decree proceedings in O.S.24/1969 when the rights of the parties have not yet become absolute in respect of any area and any specific survey number and the issue sought to be adjudicated in O.S.262/1989 is barred on account of the provisions under S.47 CPC. 4. In response, Sri S.G. Bhagawan, learned advocate appearing for the plaintiffs – respondents 1 and 2, contended that, there is an encroachment of 8.25 acres of land by the defendants and that there is a shortfall in allotment of land in favour of the plaintiffs and to get the said extent of land by virtue of decree passed in O.S.24/1969, the plaintiffs have filed the present suit and the Trial Court has framed triable issues, Learned counsel submitted that, instead of recording evidence of the parties on all the issues, the learned Trial Judge adopted the short cut method of disposal of the suit on the point of res-judicata, though no issue relating to res-judicata was distinctly raised and the plaintiffs were not even made known of the issue to be addressed. Learned counsel further submitted that, res-judicata is not a pure question of law but is a mixed question of fact and law and that the parties should be permitted to place both oral and documentary evidence in support of their respective cases. Learned counsel further submitted that, res-judicata is not a pure question of law but is a mixed question of fact and law and that the parties should be permitted to place both oral and documentary evidence in support of their respective cases. It is submitted by the learned counsel that, since, evidence is required to be recorded, the Trial Court, should record evidence on all issues and in such an event, the Trial Court is bound to allow the parties to lead evidence and record finding on all the issues, even if it were to dispose of suit on any preliminary issue, since the judgment of the Trial Court is subject to an appeal and that the appellate Court should have the benefit of views of the Trial Court, on all the issues. Learned counsel submitted that, in view of the illegality committed by the learned Trial Judge, which has been correctly noticed by the learned appellate Judge, the impugned order, which is sustainable, has been passed. 5. In view of the rival contentions and the record, the point for consideration is: “Whether the learned First Appellate Judge has committed any material error and / or illegality, in remanding the suit to the Trial Court?” 6. Issue No.7 relating to Court fee was answered by the Trial Court, much prior to the dismissal of suit. Learned Trial Judge held that issue Nos.4 and 6, involve the questions of law and hence, the same are preliminary issues. The said issues read; Issue No.4: Whether the suit is barred by limitation? And Issue No.6: Whether the suit is not maintainable as contended by the defendants 1 to 5 in para 15 of their statement? 7. Indisputedly, trial was not held and evidence of the parties was not recorded even in respect of either of the said issues. By merely hearing the arguments, learned trial Judge has answered issue No.6. The learned Trial Judge has held that, suit is hit by the principles of res-judicata. Regarding issue No.4, it has been held that, the same does not arise for consideration, in view of the finding on issue No.6. By making a reference to Rule 5 of Order 20, learned trial Judge has held that, in view of the answer to issue No.6, issue Nos.1 to 5 and 8 and 9 does not arise for consideration. Regarding issue No.4, it has been held that, the same does not arise for consideration, in view of the finding on issue No.6. By making a reference to Rule 5 of Order 20, learned trial Judge has held that, in view of the answer to issue No.6, issue Nos.1 to 5 and 8 and 9 does not arise for consideration. The suit was dismissed as barred by “principles of res-judicata”. 8. It is apparent from issue No.6(supra), that the same relates to “maintainability” and not on the question of applicability of “principles of res-judicata”. The learned Trial Judge, if had considered that there is a plea of res-judicata raised in the written statement filed by the defendants, ought to have framed a distinct issued in that regard. 9. Sub-rule (2) of R.2 of O.14 lays down that, where issues both of law and of fact arise in the same suit and the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first, if that issue relates to; (a) jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force. 10. In this connection, it is appropriate to refer to the ratio of law laid down in the case of Major S.C. Khanna Vs. Brig.F.J. Dillon – AIR 1964 SC 497 , wherein, it has been held as follows: “Under O.14 R.2 where issues both of law and of fact arise in the same suit, and the Court is of the opinion that the case or any part thereof may be disposed of on the issue of law only, it shall try those issues first, and for that purpose may, if it thinks fit postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the Court; not to do so, especially when the decision on issues even of law depends upon the decision of issue of fact, would result in a lop-sided trial of the suit.” (Emphasis supplied) 11. A perusal of the judgment passed by the Trial Court, impugned in the first appeal, does not indicate that copies of pleadings and issues framed in the earlier suit having been tendered in evidence. As already noticed, issue of res-judicata has not been distinctly framed and tried between the parties. Since, res-judicata is a mixed question of fact and law, the same should be proved by producing the copies of pleadings and issues framed in the earlier suit, by the party, which has raised the plea. In the instant case, the defendants have not proved during the trial, by producing the evidence that principles of res-judicata in terms of S.11 CPC are attracted to the suit. It is in this context, the learned appellate Judge has noticed that, the case of the plaintiffs is regarding the encroachment of land by the defendants and to get back the encroached extent, the suit for declaration of title and possession has been filed and hence, has recorded the finding that, principles of res-judicata cannot be made applicable to the case on hand and as a result, has passed the impugned order of remand of suit to the Trial Court. 12. The Trial Court had dismissed the suit, by recording the finding on applicability of principles of res-judicata. The decree was reversed by the lower appellate Court. In the suit, trial had not taken place. Hence, the question of holding a re-trial laid down under R.23-A of O.XLI, as erroneously observed by the first appellate Court, does not arise. The first appellate Court has no doubt committed an error in observing that, the provisions of R.23-A of O.41 has to be applied. In the suit, trial had not taken place. Hence, the question of holding a re-trial laid down under R.23-A of O.XLI, as erroneously observed by the first appellate Court, does not arise. The first appellate Court has no doubt committed an error in observing that, the provisions of R.23-A of O.41 has to be applied. Since no trial has not taken place in the suit, the provisions under R.23 of O.XLI CPC is attracted and the Trial Court shall hold trial in respect of the issue Nos. 1 to 6 and 8 to 10 by re-admitting the suit under its original number only to the said extent, the impugned judgment calls for clarification. In the circumstances, it is unnecessary to record any finding on the maintainability of suit, urged by the learned counsel for the defendants – appellants, since the same is required to be addressed by the trial Court, after trial of the suit. In the result, I pass the following: Order (a) Appeal is devoid of merit and hence, stands dismissed, subject to the observations made supra. (b) Case of both parties is kept open for consideration by the Trial Court, on all the issues, except issue No.7. (c) The Trial Court is directed to take the suit on its board on 21.6.2010 and proceed further in the matter. Learned counsel appearing for the parties have undertaken to keep their clients present before the Trial Court on 21.6.2010 to receive the orders. (d) Trial Court is hereby directed to dispose of the suit expeditiously and at rate within one year period from the date of first appearance of the parties. In the facts and circumstances of the case, parties are directed to bear their respective costs.