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2019 DIGILAW 1354 (KAR)

Jayaram v. G. S. Uma

2019-06-20

B.V.NAGARATHNA, K.NATARAJAN

body2019
JUDGMENT : B.V. Nagarathna, J. Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally. 2. Appellant is the plaintiff in Original Suit No.4507 of 2017. Said suit has been filed by the appellant seeking the following reliefs: i. Pass Decree and Judgment declaring that the plaintiff is the absolute and actual owner of the plaint schedule property. ii. Pass Decree and Judgment of permanent injunction restraining the defendants, their men, agents, servants or any person/persons acting or claiming through or under them from interference with the peaceful possession and enjoyment of the plaintiff over the schedule property. iii. For Decree and Judgment directing the defendants to pay the cost of the present suit. iv. For such other reliefs deemed fit and proper to this Hon'ble Court from the facts and circumstances of the case, in the interest of the justice and equity. SCHEDULE All that part and parcel of the non agricultural immovable residential house site property bearing site No.27, Assessment No.4, bearing Khatha No.633, formed in Sy. No.4, situated at Laggere Village, Yashavanthapura Hobli, Bangalore North Taluk, measuring to an extent of East to West 40 feet North to South 30 feet bounded by: East : Site bearing No.26 West : Site bearing No.28 North : Road South : Muneshwara temple in site bearing No.34 3. In response to the said plaint, the defendants appeared and filed their written statement. They also filed an application, namely I.A. No.II under Order VII Rule 11 of the Code of Civil Procedure, 1908, (C.P.C.) seeking rejection of the plaint on the ground that the suit was barred by the principles of res judicata. By order dated 28-9-2018, said application has been allowed and the plaint has been rejected. Hence, this appeal. 4. We have heard learned counsel for the appellant and learned counsel for caveator-respondent Nos.1 to 3 and perused the material on record. 5. Appellant'S counsel contended that, initially, the respondents had filed Original Suit No.3574 of 2001 on the file of the XXV Additional City Civil and Sessions Judge, Bengaluru, seeking relief of permanent injunction against the appellant herein in respect of site No.27 in Survey No.4 measuring 30 X 40 feet situated at Laggere Village, Yeshwanthapura Hobli, Bengaluru North Taluk, Bengaluru. 5. Appellant'S counsel contended that, initially, the respondents had filed Original Suit No.3574 of 2001 on the file of the XXV Additional City Civil and Sessions Judge, Bengaluru, seeking relief of permanent injunction against the appellant herein in respect of site No.27 in Survey No.4 measuring 30 X 40 feet situated at Laggere Village, Yeshwanthapura Hobli, Bengaluru North Taluk, Bengaluru. Said suit was decreed by judgment and decree dated 22-6-2012, against which, the appellant herein had preferred Regular First Appeal No.1521 of 2012. The said appeal was dismissed by judgment dated 14-6-2017. However, liberty was reserved to the appellant herein to file a suit before the appropriate Court in respect of site No.34 in survey No.4 measuring 40 x 30 feet. It is on the basis of said liberty, the appellant has filed Original Suit No.4507 of 2017. In which, the respondents herein filed application under Order VII Rule 11 of C.P.C. seeking rejection of the plaint. 6. Learned counsel for the appellant contended that the trial Court has rejected the plaint based upon the reasoning of this Court in Regular First Appeal No.1521 of 2012. That the approach of the trial Court is wholly incorrect. He submitted that the trial Court could not have rejected the plaint on the ground that the plaint was hit by principles of res judicata. That the principle of res judicata involves mixed question of law and fact, which requires not only examination of the plaint but also evidence. It cannot be the ground to reject the plaint. In support of his contention, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of VAISH AGGARWAL PACHAYAT v. INDER KUMAR AND OTHERS, (2015) AIR SC 3357; judgment of this Court in the case of HANMANTHRAYA v. DEVIKAMMA, 2019 ILR(Kar) 529 and another judgment in the case of SANGRAMAPPA v. S. GANGAMMA, 2019 3 KarLJ 348 . He contended that impugned order be set aside and the matter be remanded to the trial Court for consideration of the suit in accordance with law. 7. Per contra, learned counsel for the respondents supported the order of the trial Court and contended that the suit has been filed in respect of site No.27 in survey No.4 which was the subject matter of the suit filed by the respondents in Original Suit No.3574 of 2001, which suit was decreed by the trial Court. 7. Per contra, learned counsel for the respondents supported the order of the trial Court and contended that the suit has been filed in respect of site No.27 in survey No.4 which was the subject matter of the suit filed by the respondents in Original Suit No.3574 of 2001, which suit was decreed by the trial Court. Against which, the appeal filed by the appellant was dismissed. Liberty was granted to the appellant to file a suit in respect of site No.34, but the appellant has filed in respect of site No.27. There is already decree passed by the trial Court, which is confirmed by this Court in R.F.A. No.1521 of 2012 in respect of site No.27. It is the decree for possession against the appellant herein and the respondents have filed an execution petition seeking execution of the said decree. He supported the impugned order and decree. Therefore, he contended rejecting the plaint is correct which order does not call for any interference in this appeal. 8. Having heard learned counsel for the respective parties and on perusal of the material on record, we note that the appellant has preferred Original Suit No.4507 of 2017 seeking the aforesaid reliefs. The said suit is a comprehensive suit seeking declaration of title as well decree of permanent injunction. In fact, in respect of said suit schedule property, the respondents herein had filed Original Suit No.3574 of 2001 seeking relief of possession. Said suit was decreed and this Court has confirmed the decree. But while dismissing the appeal, this Court permitted the appellant herein to file a suit and liberty was reserved in respect of site No.34. It is the case of the appellant that site No.34 as well as site No.27 are one and the same. Therefore, from the Schedule to the plaint, it is noted as site No.27. It is in respect of this very site that the respondents have a decree for possession. In other words, the respondents have admitted that the said site is in possession of the appellant and they have sought for possession of the same. 9. Be that as it may, the question that arises for our consideration before this Court is: Whether the trial Court could have rejected the plaint by exercising the power under order VII Rule 11 of C.P.C.? 10. 9. Be that as it may, the question that arises for our consideration before this Court is: Whether the trial Court could have rejected the plaint by exercising the power under order VII Rule 11 of C.P.C.? 10. The provision of Order VII Rule 11 of C.P.C. enables the Court to reject a plaint where the suit would be barred by any law. Contention raised by learned counsel for the respondents is that the said suit filed by the appellant is barred by the principles of res judicata. While exercising the said power, the trial Court ought to have noted that while applying the principles of res judicata, the question to be considered is both question of law as well of fact, which would require evidence to establish that the suit is barred by res judicata, unless it is abundantly evident on reading of a plaint. In the facts and circumstances of the instant case, the plaint is not hit by principles of res judicata and cannot be discarded on a plain reading of the plaint. Moreover, this Court had permitted the appellant to file an independent suit, and the appellant has filed a comprehensive suit seeking the relief of declaration as well injunction in respect of suit schedule property. It may be that, the respondents have a decree of possession in respect of same site, but the fact remains that this Court had directed the appellant to file a suit and the appellant, on the basis of said direction, has filed a comprehensive suit. That apart, the Hon'ble Supreme Court has categorically held that the plaint cannot be rejected on the ground that it is hit by res judicata as the said question just as the question of limitation is sometimes a mixed question of law and fact, which may require not only examination of plaint, but also recording of evidence. The trial Court has not permitted to record evidence on the aspect whether the suit is barred as being hit by the principle of res judicata, but has simply rejected the plaint, which approach of the trial Court is not correct. 11. Hence, the impugned order is set aside. The suit is restored on the file of the trial Court. Matter is remanded to the trial Court to be tried in accordance with law. 12. 11. Hence, the impugned order is set aside. The suit is restored on the file of the trial Court. Matter is remanded to the trial Court to be tried in accordance with law. 12. Since the parties are represented by their respective learned counsel, they shall appear before the trial Court on 5-8-2019 without expecting any separate notices from the said Court. 13. In view of the disposal of the appeal, all pending applications stand disposed. In view of the impugned order rejecting the plaint being set aside and suit being restored on the file of the trial Court, Registry is directed to refund the entire Court-Fee paid by the appellant, after due identification, as per Section 64(1) of the Karnataka Court-Fees and Suits Valuation Act, 1958.