Research › Search › Judgment

Karnataka High Court · body

2015 DIGILAW 476 (KAR)

B. Abdul Rehaman Khan v. B. Abdul Azeez Khan

2015-04-25

N.KUMAR

body2015
ORDER : N. Kumar, J. 1. The defendants have preferred these writ petitions challenging the order passed by the Trial Court holding the preliminary issues 2 and 3 in the negative and posting the case for evidence on other issues, in the suit. The plaintiff filed the suit for partition and separate possession of his legitimate share in the plaint schedule property. The defendant filed the written statement; issues have been framed. The case of the defendant is that the plaintiff had earlier filed a suit in O.S. No. 47 of 2007 for the same relief. A memo for dismissal came to be filed therein on 3-11-2007 stating that the suit was settled outside the Court. Accordingly, the said suit came to be dismissed. 2. Therefore, it is contended that a second suit for partition is not maintainable. The learned Counsel for the petitioner has invoked Order 2, Rule 2 of Civil Procedure Code, 1908 to contend that the suit is not maintainable and also argued that since the dispute between the parties was settled in the earlier suit, the order of dismissal of O.S. No. 47 of 2007 operates as res judicata. 3. The Trial Court framed issues 2 and 3 as preliminary issues in O.S. No. 25 of 2012 as under: "(2) Whether the defendants 1 to 3 prove that the suit is hit by Order 2, Rule 2 of CPC as contended in the written statement? (3) Whether the defendants 1 to 3 prove that the suit is hit by principles of res judicata as contended in the written statement?" 4. The Trial Court, on consideration of the rival contentions, held that the cause of action for the earlier suit and the cause of action for present suit are totally different, as such, the contention that the suit is hit by Order 2, Rule 2 of CPC is without any substance. 5. Admittedly, earlier suit was not heard and decided on merits. Unless an earlier suit is heard and decided on merits, the second suit would not be barred by res judicata. Therefore, that issue was also held against the defendants. Aggrieved by the said order, the present writ petitions are filed. 6. I have heard the learned Counsel for the parties. Admittedly, earlier suit was not heard and decided on merits. Unless an earlier suit is heard and decided on merits, the second suit would not be barred by res judicata. Therefore, that issue was also held against the defendants. Aggrieved by the said order, the present writ petitions are filed. 6. I have heard the learned Counsel for the parties. As is clear from the records, the earlier suit for partition was dismissed as withdrawn on a memo filed by the plaintiffs reporting that the dispute was settled outside the Court. Now in the present suit, it is alleged that in terms of the compromise, the plaintiffs have not been given their legitimate share; and therefore, the suit property continues to be a joint family property and there is no severance of status. A second suit for partition and separate possession is maintainable. At any rate the cause of action is different from the earlier suit. Therefore, Order 2, Rule 2 of CPC has no application as rightly held by the Trial Court. The earlier suit was dismissed as settled out of Court on a memo. There was no trial and there was no finding on any issues. In other words, the case was not decided on merits. In that view of the matter, Section 11of CPC is also not attracted as rightly held by the Trial Court. There is no merit in these petitions. Accordingly, petitions are dismissed.