The High Court held that a civil court erred in dismissing an application to frame an issue regarding pecuniary jurisdiction as barred by res judicata, noting the prior decision lacked evidentiary basis.
Petition allowed; impugned order quashed; civil court ordered to cast issue under Order XIV Rule 5 CPC as preliminary issue.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER 2021
BEFORE
THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO.5777/2018 (GM-CPC)
BETWEEN :
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THIPPASANDRA HOBLI, MAGADI TALUK
.... PETITIONERS
(BY SRI. P.M.GOPI, ADVOCATE FOR SRI. P.M.SIDDAMALLAPPA, ADVOCATE)
AND :
... RESPONDENTS
(BY SMT. SHREE VIDHYA, ADVOCATE FOR SRI. T.N.VISHWANATH, ADVOCATE FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 20.01.2017 PASSED BY THE LEARNED II ADDITIONAL CIVIL JUDGE AND JMFC, MAGADI ON I.A.NO.III FILED UNDER ORDER VII RULE10(1) READ WITH SECTION 151 OF CIVIL PROCEDURE
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CODE IN O.S.NO.451/2014 AS PER ANNEXURE-H; SET ASIDE THE ORDER DATED 29.11.2017 PASSED BY THE LEARNED II ADDITIONAL CIVIL JUDGE AND JMFC, MAGADI ON I.A.NO.IV FILED UNDER ORDER 14 RUL 5 OF CODE OF CIVIL PROCEDURE IN O.S.NO.451/2014 AS PER ANNEXURE-H AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
The petitioners are the defendants in
O.S.No.451/2014 on the file of the Additional Civil Judge and JMFC, Magadi (for short, ' the civil Court '). The civil Court by the impugned order dated 29.11.2017 has rejected the petitioners' application (I.A.No.IV) under Order XIV Rule 5 of the Code of Civil Procedure, 1908 (for short, ' CPC' ) on the ground that the petitioners' application, for casting of Issue requiring the petitioners to show that the civil Court has no pecuniary jurisdiction to try the suit, is barred by res judicata . The petitioners have also challenged the civil Court's order on the petitioners' application (I.A.No.III)
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under Order VII Rule 10 of CPC, but the learned counsel for the petitioners submits that the petitioners will not pursue the writ petition insofar as the civil Court's order.
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of the plaintiffs - respondents would be far in excess of Rs.5,00,000/- (Rupees Five Lakhs Only). The learned urges that the earlier application is decided without evidence and if the petitioners can demonstrate, by placing cogent material on record, that the value of the subject properties is more than Rs.2,00,00,000/(Rupees Two Crores Only) and the valuation of the share asserted by each of the petitioners is more than Rs.5,00,000/- (Rupees Five Lakhs Only), the civil Court will have to pass appropriate orders on its jurisdiction.
the contesting respondents submits that the finding that the valuation by the Sub-Registrar, Magadi does not relate to the suit schedule properties must operate as res judicata and therefore, the civil Court is justified. But this contention, which is a reiteration of the reasons offered by the civil Court, cannot overwhelm the fact that the petitioners at the first instance have filed
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their written statement denying the pecuniary jurisdiction as asserted by the first and second plaintiffs, and they have not had the opportunity to lead complete evidence to substantiate their case.
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Issue and treat the same as preliminary Issue because it touches upon jurisdiction in view of the decision of a Full Bench of this Court in Venkatesh R. Desai Vs. Smt. Pushpa Hosmani and others, reported in ILR 2018 Kar. 5095 . Therefore, the following:
ORDER
The petition is allowed and the impugned order dated 29.11.2017 in O.S.No.451/2014 on the file of the Additional Civil Judge and JMFC, Magadi is quashed. The petitioners' application (I.A.No.IV) under Order XIV Rule 5 of CPC is allowed calling upon the civil Court to cast Issue as proposed by the petitioners and to treat the same as preliminary Issue and decide the same in accordance with law.
Sd/JUDGE
RB
2 issues framed by the court
Whether the civil court was justified in rejecting the application to frame an issue regarding pecuniary jurisdiction on the ground of res judicata.
Whether the earlier decision based solely on a Sub-Registrar's certificate without opportunity to lead evidence bars a subsequent challenge.
Colour shows how this judgement treated each authority
Venkatesh R. Desai Vs. Smt. Pushpa Hosmani and othersReferred¶38
ILR 2018 Kar. 5095 · Who else cites this
3 provisions across 2 enactments
Jayamma Wife of Late K. Bylappa
Narasimhamurthy Son of Late K. Bylappa
Basavaraju Son of Late K. Bylappa
Manjula Wife of Hanumantharaju
B. M. Shyam Prasad
As recorded by the court registry
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