Dismissed

Sri Panduboyi v. Smt Thayamma

Karnataka HC8 Dec 2021CRP/28/2021

Case brief

AI extract

What is this about?

This revision petition under Section 115 of the CPC was filed by the defendant challenging the trial court's order rejecting an application to reject the plaint on the ground of res judicata. The High Court observed that res judicata cannot be the sole ground for rejection under Order VII Rule 11(d) and dismissed the petition.

What did the court decide?

The revision petition was dismissed with no merit.

Sri Panduboyi Vs Smt Thayamma — Civil Procedure and Limitation | Karnataka HC (2021)

¶1

-1-

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 08^TH DAY OF DECEMBER, 2021

¶4

BEFORE

¶5

THE HON'BLE MR. JUSTICE R. NATARAJ

¶6

CIVIL REVISION PETITION NO.28/2021 (IO)

¶7

BETWEEN :

¶8

SRI PANDUBOYI

¶9

S/O LATE SRI THIMMABOYI

¶10

AGED ABOUT 61 YEARS,

¶11

R/AT PALYA VILLAGE

¶12

(KONANAPURA)

¶13

KASABA HOBLI

¶14

NANJANGUD TALUK

¶15

MYSORE DISTRICT-571312

¶16

2. SMT NAGAMMA

¶17

W/O LATE SRI KRISHNABOYI

¶18

AGED ABOUT 46 YEARS,

¶19

R/O LINGABUDIPALYA

¶20

KASABA HOBLI SRIRAMPURA POST MYSURU TALUK

¶21

MYSURU DISTRICT-570008

¶22

3. SRI KUMARA

¶23

S/O LATE SRI KRISHNABOYI

¶24

AGED ABOUT 27 YEARS,

¶25

R/O LINGABUDIPALYA

¶26

KASABA HOBLI SRIRAMPURA POST MYSURU TALUK

¶27

MYSURU DISTRICT-570008

¶28

-2-

¶29

SMT VIJAYALAKSHMI D/O LATE SRI KRISHNABOYI AGED ABOUT 25 YEARS R/O LINGABUDIPALYA KASABA HOBLI SRIRAMPURA POST MYSURU TALUK MYSURU DISTRICT-570008.

¶30

…PETITIONERS (BY SRI. RUPESH KUMAR S, ADVOCATE)

¶31

AND :

¶32

SMT THAYAMMA D/O LATE SRI SIDDAMMA W/O LATE DASABOYI AGED ABOUT 71 YEARS, R/AT PALYA VILLAGE (DEVIRAMMANAHALLY) KASABA HOBLI NANJANGUD TALUK MYSURU DISTRICT-571301

¶33

SRI MELAIAH @ MELABOYI S/O LATE SRI GULLEBOYI AGED ABOUT 51 YEARS, R/AT PALYA VILLAGE (KONANAPURA) KASABA HOBLI NANJANGUD TALUK MYSORE DISTRICT-571312

¶34

SRI RAMASWAMY S/O LATE SRI GULLEBOYI AGED ABOUT 51 YEARS, R/AT PALYA VILLAGE (KONANAPURA) KASABA HOBLI NANJANGUD TALUK MYSORE DISTRICT-571312

¶35

-3-

¶36

SMT NAGAMMA

¶37

D/O LATE SRI GULLEBOYI AGED ABOUT 45 YEARS, R/AT PALYA VILLAGE (KONANAPURA) KASABA HOBLI, NANJANGUD TALUK MYSORE DISTRICT-571312

¶38

SMT NAGAMMA D/O LATE SIDDAMMA AGED ABOUT 61 YEARS, R./AT HOMMARAGALLI VILLAGE HANDPOST HOBLI, H D KOTE TALUK MYSURU DISTRICT-571114.

¶39

…RESPONDENTS

¶40

(RESPONDENT NO.1 SERVED, NOTICE TO RESPONDENT NOS.2 TO 5 IS D/W)

¶41

THIS CRP FILED UNDER SEC.115 OF CPC., AGAINST THE ORDER DATED 30.06.2020 PASSED ON IA NO.2 IN OS NO.30/2019 ON THE FILE OF THE II ADDL.CIVIL JUDGE AND JMFC., NANJANGUD AT NANJANGUD DISPOSING THE IA NO.2 FILED UNDER ORDER 7 RULE 11(d) OF CPC., FOR REJECTION OF PLAINT.

¶42

THIS CRP COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

¶43

ORDER

¶44

This revision petition is filed by the defendant No.5 challenging an order passed by the II Additional Civil Judge & JMFC at Nanjanagud (henceforth referred to as ‘Trial Court’) rejecting an application

¶45

-4-

¶46

filed by him under Order VII Rule 11(d) of CPC in O.S.No.30/2019. The contention urged by the petitioner was that the suit filed in O.S.No.30/2019 was barred by res judicata , in view of an earlier judgment passed in O.S.No.310/2007. The Trial Court noticed that the O.S.No.30/2019 filed for partition and separate possession of the plaintiff in respect of two items of properties after declaring that the sale deed dated 08.08.1977 executed in favour of defendant No.5 as null and void. On the contrary, the suit filed in O.S.No.310/2007 was for perpetual injunction in respect of item No.1 involved in O.S.No.30/2019. The Trial Court noticed that though O.S.No.310/2007 was dismissed and R.A.No.64/2013 was also dismissed, yet since the earlier suit was only in respect of one item while the present suit was for two items, it cannot reject the plaint in piecemeal. Hence, it rejected the application.

¶47

-5-

¶48

Being aggrieved by the aforesaid order, the

¶49

present revision petition is filed.

¶50

Though the same contentions are reiterated

¶51

before this Court, it is not in dispute that the earlier suit was for perpetual injunction against defendant No.5 in respect of Sy.No.195/1 and 195/2 of Kananapura. The plaintiffs detailed their Genealogy as follows:

¶52

MUDDABHOVI

¶53

SIDDAMMA GIRIYAMMA KALAMMA CHINAMMA SIDDAIAH THAYAMMA NO ISSUES NO ISSUES MELAIAH NO ISSUES (PLFF.NO.1) (PLFF.NO.3)

¶54

RAJA (PLFF.NO.2)

¶55

-6-

¶56

The plaintiffs claimed that Sy.No.195/1 and 195/2 was the ancestral property of Muddabovi and that after his death, they were in possession. They claimed that the defendants were interfering with the plaintiffs from enjoying the property and thus sought perpetual injunction in O.S.No.310/2007. The defendants contested the suit and claimed that they purchased the properties from the husband of Chinamma in terms of a sale deed dated 08.08.1977. Based on this, the Trial Court dismissed the suit and the appeal filed there against was also dismissed.

¶57

It was later that the present suit in O.S.No.30/2019 is filed for partition and separate possession contending that the husband of Chinamma had no absolute right to sell the property in terms of the sale deed dated 08.08.1977.

¶58

-7-

¶59

Therefore, it is doubtful whether the suit filed in O.S.No.30/2019 is barred by res-judicata. Be that as it may, the question whether a plaint can be rejected on the ground that it is barred by re-judicata can definitely not be considered in an application under Order VII Rule 11(d) of CPC in view of the authoritative pronouncement of the Supreme Court of India in Srihari Hanumandas Totala Vs. Hemant Vithal Kamat, 2021 SCC OnLine SC 565 . The Trial Court was therefore justified in rejecting the application.

¶60

There is no merit in this revision petition and is therefore dismissed .

¶61

Sd/JUDGE

¶62

Sri Panduboyi v. Smt Thayamma

Case brief

What is this about?

What did the court decide?

Sri Panduboyi v. Smt Thayamma

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt. K. N. Chandrika Vs the Deputy Commissioner

K M Malleshgowda Vs state of karnataka

Siddesh Y S Vs State of Karnataka

K v Paramesha Vs State of Karnataka

Juber Ahmed Vs State of Karnataka

Mallesha Vs sushama