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2014 DIGILAW 647 (KAR)

Suresh Kumar v. S. K. Shreedevi

2014-07-08

H.G.RAMESH

body2014
Judgment : 1. Heard the learned Counsel for respective parties. This Revision Petition is filed against the order passed by the XXXVII Additional City Civil and Sessions Judge, Bangalore City in O.S. No. 7363/2009. The suit filed by the respondents for declaration and possession and also for permanent injunction came to be allowed by the impugned order en rejection of the plea of res-judicata and also having referred to a decision cited by the Counsel for the petitioner herein who is the defendant No.2 in the suit, which was to be not applicable to the suit. Accordingly, the suit filed by the plaintiff was allowed. 2. It transpires from the records that one Sri. Shankar sold the property to one Smt. Sayeeda Fathima during 1996. Thereafter, the plaintiff purchased the said property from Fathima and she continued to be the tenant under rental agreement. The suit earlier filed came to be dismissed It is submitted by the learned Counsel for the defendant that the property in question was in possession of the wife and son of Shankar as tenants. However, as certain materials were not available at that time, the plaintiffs suit for possession filed earlier was dismissed. However, he filed a comprehensive suit for possession/permanent injunction and also for declaration, which suit came to be allowed. As against this, the defendant No.2 is before this Court in this Revision Petition. 3. The plaintiff in the suit purchased the property from Fathima. After the purchase, plaintiff filed O.S. No.8108/1998. The defendants in the suit did not appear but the suit came to be dismissed on the ground that remedy lies under the provisions of the Karnataka Rent Control Act. The plaintiff pursued that remedy, but however, ultimately before this Court, the petition filed by the tenants against the order was allowed and the plaintiff was reserved liberty to file a suit for recovery of the property. Thereafter, the present suit came to be filed by the plaintiff. The Court below raised issue of res judicata on the plea of the defendants that it is hit by principles of res judicata, but found that such a plea could Dot be entertained as the earlier suit was not determined on merits and therefore, will not prevent the plaintiff from suing the defendants. 4. The Court below raised issue of res judicata on the plea of the defendants that it is hit by principles of res judicata, but found that such a plea could Dot be entertained as the earlier suit was not determined on merits and therefore, will not prevent the plaintiff from suing the defendants. 4. It is the contention of the petitioner herein that since the suit filed earlier by the plaintiff has been dismissed and the said suit was a comprehensive one being filed for permanent injunction, declaration and also possession. The present suit is hit by principles of res judicata. The defendant No.2 - petitioner herein also placed reliance on the decision of the Apex Court reported in (1982) 1 SCC 71 (Gulam Abbas and others Vs. State of Uttar Pradesh and others) in support of his contention. But a perusal of the records leaves no doubt as regards the fact that the suit earlier filed by the plaintiff was not one decided on merits. Though it is a comprehensive one, the rights of the parties having not been determined by findings recorded on the comparitive merits of the case, the principles of res judicata could have no application to the present case. Therefore, the Court below was right in allowing the suit filed by the plaintiff and holding that the principles of res judicata has no application to the facts of the present case. 4. In that view of the matter, petitioner has not made out good ground for consideration. Accordingly, Petition is dismissed. In view of dismissal of the main petition, I.A. No. 1/2014 does not survive for consideration, accordingly it is dismissed.