Dismissed

Sri P C Mallappa v. Smt Chowdamma

Karnataka HC29 Nov 2021CRP/122/2021

Case brief

AI extract

What is this about?

A Civil Revision Petition was filed challenging the dismissal of an application to set aside the rejection of a plaint under Order VII Rule 11 CPC. The High Court observed that the plaint did not reference the earlier suit and since the plaintiffs' share was not declared therein, there was no bar of res judicata. The Revision Petition was dismissed.

What did the court decide?

The Revision Petition was dismissed, and the order passing on the Revision Petition shall be followed.

Sri P C Mallappa Vs Smt Chowdamma — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29^TH DAY OF NOVEMBER, 2021 BEFORE

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THE HON’BLE MR. JUSTICE R. NATARAJ

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CIVIL REVISION PETITION NO.122 OF 2021 (IO)

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BETWEEN:

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SRI. P.C. MALLAPPA S/O LATE CHIKKAMUNISHAMAPPA, AGED ABOUT 68 YEARS, 8^TH MAIN ROAD, J.P. NAGAR, BENGALURU-560078.

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...PETITIONER

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(BY SRI. RAJASHEKAR S., ADVOCATE)

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AND:

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SMT. CHOWDAMMA W/O LATE MUNIYAPPA, AGED ABOUT 66 YEARS,

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SRI. NARAYANASWAMY S/O LATE MUNIYAPPA, AGED ABOUT 71 YEARS,

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SMT. JNANESHWARI D/O LATE MUNIYAPPA, AGED ABOUT 38 YEARS,

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PLAINTIFF/RESPONDENT NO.1 TO 3 ARE R/AT NO.220/1, B.B. NAGARA MAIN ROAD, SAHAKARNAGAR, KODIGEHALLI, BENGALURU-560092

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SMT. AKKAYYAMMA W/O LATE SUBRAMANI, AGED ABOUT 51 YEARS,

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SMT. KAVITHA D/O LATE SUBRAMANI, AGED ABOUT 30 YEARS,

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SRI. KUMAR S/O LATE SUBRAMANI, SINCE DEAD REPRESENTED BY HIS LR SMT. AKKAYYAMMA W/O LATE SUBRAMANI, MOTHER OF RESPONDENT NO.6 PLAINTIFF/RESPONDENT NO.4 TO 6 ARE RESIDING AT SONNENAHALLIPURA VILLAGE, KASABA HOBLI, HOSAKOTE TALUK-562114

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SRI. NAGARAJAPPA S/O LATE DAS @ DASAPPA, AGED ABOUT 68 YEARS, R/AT NO.227, 5^TH CROSS, JAKKUR LAYOUT, NEAR PILLEKAMMA TEMPLE, JAKKUR POST, BENGALURU-560064

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SMT. JAYALAKSHMAMMA W/O RAMANJINAPPA, AGED ABOUT 44 YEARS, R/AT NO.4, DASARAHALLI, HAL POST, K.R. PURAM HOBLI, BENGALURU EAST TALUK, BENGALURU-560024

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…RESPONDENTS

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(BY SRI. PRASANNA KUMAR R.S., ADVOCATE FOR R1 TO R5; SRI. RAMESH KUMAR V., ADVOCATE FOR R8, NOTICE SERVED ON R7 AND UNREPRESENTED)

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THIS PETITION IS FILED UNDER SECTION 115 OF CPC, AGAINST THE ORDER DATED 16.02.2021 PASSED IN

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O.S.NO.294/2015 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, DODDABALLAPURA, DISMISSING THE I.A. UNDER ORDER VII RULE 11 (a) AND (d) OF CPC.

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT PASSED THE FOLLOWING:

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ORDER

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This Revision Petition is filed assailing the correctness of the order dated 16.02.2021 passed by the Additional Civil Judge and J.M.F.C at Doddballapura (henceforth referred to as 'Trial Court') in O.S.No.294/2015 by which an application filed by the defendant No.3 under Order VII Rule 11(a) and (d) of Code of Civil Procedure was rejected.

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The suit in O.S.No.294/2015 was filed for partition and separate possession of the shares of the plaintiffs in the suit schedule property. It was contended in the suit that the plaintiffs and defendant Nos.1 and 2 constituted a joint family and that the suit property was owned and possessed by the grandfather of the plaintiff Nos.2 to 6. It is claimed that the defendant No.1 had unlawfully executed a Power of Attorney and Agreement of

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Sale in favour of the defendant No.2. The plaintiffs contended that the said Power of Attorney did not bind their right, title and interest in the suit schedule property. The suit was contested by the defendant No.3 who filed his written statement. He filed application under Order VII Rule 11(a) and (d) of Code of Civil Procedure contending that the plaintiffs in O.S.No.294/2015 were arrayed as defendant Nos.2 to 7 in O.S.No.35/2008 and they had consented to decree the suit filed in O.S.No.35/2008, consequent to which O.S.No.35/2008 was decreed in terms of the Judgment and Decree dated 26.03.2009. It is, therefore, contended that there is no cause of action for filing the present suit and that the present suit was barred by principles of res-judicata .

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The Trial Court after considering the contentions raised in the plaint held that the plaint discloses sufficient cause of action and that it did not bear any reference to the earlier suit filed in O.S.No.35/2008 and hence, rejected the application filed by the defendant No.3. Being

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aggrieved by the aforesaid Order, the present petition is filed.

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Learned counsel for the defendant No.3 - plaintiff herein reiterated his contentions and contended that the dispute between the parties were already settled in O.S.No.35/2008 and therefore, there is no cause of action to file the present suit and that the present suit is barred by principles of res-judicata .

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On the contrary, learned counsel for the respondents submitted that the share of the plaintiffs was not declared in O.S.No.35/2008. He also contended that a reading of the plaint did not indicate any reference to the suit filed in O.S.No.35/2008 and therefore, the Trial Court was justified in rejecting the application taking into consideration the averments of the plaint. He also contended that the res-judicata being a question of fact has to be treated and adjudicated in the suit and that the same cannot be considered at the initial stage of the suit itself.

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I have considered the submission made by the learned counsel for the parties.

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As rightly contended by the learned counsel for the respondents, the plaint did not mention about the suit filed in O.S.No.35/2008. Even assuming that the plaintiffs in the present suit were the defendant Nos.2 to 7 in O.S.No.35/2008, which was filed for partition and separate possession by another member of the joint family, their share was not declared in the said suit. Thus there is no impediment in law for the plaintiffs to file O.S.No.294/2015 for partition of their share. It is prima-facie evident that the principles of res-judicata was not applicable as the share of the plaintiffs was not decided in O.S.No.35/2008.

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The suit is based on a clear cause of action that the suit properties were ancestral properties in the hands of the defendant No.1 and that he had proprietarily executed a Power of Attorney in favour of the defendant No.2. It was also contended that the plaintiffs requested

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the defendant No.1 to partition of the suit property which was turned down.

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In that view of the matter, the Trial Court was justified in rejecting the application. There is no merit in the Revision Petition and the same is dismissed.

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Any observation made in this Order is only for the limited purpose of deciding this Revision Petition and the Trial Court shall not be influenced by the same while disposing off O.S.No.294/2015 on merits.

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Sd/JUDGE

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NBM

Sri P C Mallappa v. Smt Chowdamma

Case brief

What is this about?

What did the court decide?

Sri P C Mallappa v. Smt Chowdamma

Case brief

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