Allowed

Sri Basavaraj v. Umashankarayya

Karnataka HC8 Dec 2023RSA/1414/2006

Case brief

AI extract

What is this about?

This regular second appeal concerns a recovery suit barred by the lower appellate court on grounds of res judicata and limitation. The High Court held that the earlier suit for redemption did not raise the same issue as the present money recovery suit, making res judicata inapplicable, and allowed the appeal.

What did the court decide?

Set aside the judgment and decree in R.A.No.93/2001 dated 24.03.2006 and affirm the judgment and decree in O.S.No.324/1997.

Sri Basavaraj Vs Umashankarayya — Contract and Commercial Disputes | Karnataka HC (2023)

¶1

¶2

NC: 2023:KHC-D:14432 RSA No. 1414 of 2006

¶3

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

¶4

DATED THIS THE 8^TH DAY OF DECEMBER, 2023

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

¶7

REGULAR SECOND APPEAL NO. 1414 OF 2006 (MON)

¶8

BETWEEN:

¶9

SRI. BASAVARAJ S/O JAMBANNA KATARKI, AGED ABOUT 40 YEARS, OCC. BUSINESS, R/O. GRAIN MARKET, GADAG, PIN 582101.

¶10

… APPELLANT

¶11

(BY SRI. KRISHNA KUMAR JOSHI, ADVOCATE FOR SRI. V.P. KULKARNI, ADVOCATE)

¶12

AND:

¶13

UMASHANKARAYYA, S/O GURUSIDDAYYA KOTAGUNASHIMATH, AGED ABOUT 47 YEARS,

¶14

Digitally signed VIJAYALAKSHMIM KANKUPPI byVIJAYALAKSHMIM KANKUPPI Date: 2023.12.14 12:26:20 +0530

¶15

SHASHIDHARAYYA, S/O GURUSIDDAYYA KOTAGUNASHIMATH, AGED ABOUT 44 YEARS,

¶16

MAHESWARAYYA, S/O GURUSIDDAYYA KOTAGUNASHIMATH, AGED ABOUT 42 YEARS,

¶17

(ALL ARE R/O. RACHOTESHWARA NAGAR, GADAG, PIN 582101.)

¶18

SMT. SHAKUNTALABAI, W/O GURUSIDDAYYA KOTAGUNASHIMATH, AGED ABOUT 67 YEARS, OCC. HOUSEHOLD WORK, R/O. RACHOTESHWARA NAGAR, GADAG, PIN-582101.

¶19

2 - NC: 2023:KHC-D:14432 RSA No. 1414 of 2006

¶20

SMT. RENUKA, W/O RACHAYYA VASTRAD, AGED ABOUT 41 YEARS, OCC. HOUSEHOLD WORK, R/O. MUDHOL, BAGALKOT, PIN-583259.

¶21

SMT. SHOBHA, W/O SHIVABASAYYA HIREMATH, AGED ABOUT 36 YEARS, OCC. HOUSHEOLD WORK, R/O. GADAG, DIST. GADAG, PIN-582101.

¶22

… RESPONDENTS

¶23

(BY SRI. MALLIKARJUN C. BASAREDDY, ADV. FOR R1-R3 & R5 & R6)

¶24

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED.24.03.2006 PASSED IN R.A.NO.93/2001 ON THE FILE OF THE CIVIL JUDGE (SR.DN) AND CJM, GADAG, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED.21.08.2001 PASSED IN O.S.NO.324/97 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN), GADAG.

¶25

THIS APPEAL IS COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶26

JUDGMENT

¶27

This second appeal is filed praying to set-aside the

¶28

judgment and decree dated 24.03.2006 passed in R.A. No.93/2001 by the Civil Judge (Senior Division) Gadag and confirm/restore the judgment and decree dated 28.01.2001 passed in O.S.No.324/1997 by the Principal Civil Judge,(Junior Division)Gadag.

¶29

3 - NC: 2023:KHC-D:14432 RSA No. 1414 of 2006

¶30

The appellant was plaintiff and respondent was

¶31

defendant in the trial Court in O.S.No.324/1997. Parties

¶32

herein are referred as per their ranks in the Trial Court.

¶33

The plaintiff has filed suit seeking recovery of amount of Rs.48,400/- with future interest at 12%P.A. The case of the plaintiff is that the defendant has mortgaged his property shop bearing CTS No.1701/2D situated at Grain market, Gadag infavour of the plaintiff for Rs.25,000/- for a period of 04 years and executed the registered mortgage deed dated 21.11.1988.

¶34

Subsequently, as the defendant was in need of more money, he requested the plaintiff to give another Rs.25,000/- and he would execute a further charge deed. The plaintiff has paid the Rs.22,000/- on 08.02.1989 and the defendant executed an agreement to mortgage the said property and agreed to execute a registered deed in that regard by receiving Rs.3,000/-. Thereafter, the defendant did not execute registered deed. The defendant has filed O.S.No.447/1996 for redemption of mortgage

¶35

4 - NC: 2023:KHC-D:14432 RSA No. 1414 of 2006

¶36

stating that he is ready to pay Rs.25,000/- which was mortgage money and he refused to pay Rs.22,000/- as it

¶37

is not mortgaged amount. The said suit for redemption of mortgage came to be decreed. Therefore, the plaintiff has filed suit for recovery of Rs.22,000/- with interest.

¶38

The defendant in the said suit in his written statement admitted mortgage transaction but denied subsequent transaction and receipt of Rs.22,000/- on 08.02.1989. He has also denied execution of an agreement to mortgage the said property. The defendant has admitted he has filed suit for redemption in O.S.No.447/1996 and deposited Rs.25,000/- in Court.

¶39

The defendant has denied that he has acknowledged or promised to pay amount of Rs.22,000/- in written statement filed by him in O.S.No.128/1995.

¶40

The defendant contended that in O.S.No.447/1996 the plaintiff who was the defendant filed

¶41

written statement and taken the said plea. The Court had framed an issue about payment of Rs.22,000/- and it was

¶42

¶43

NC: 2023:KHC-D:14432 RSA No. 1414 of 2006

¶44

answered in the negative. Against the said finding no appeal was preferred and as such the principles of resjudicata is applicable. With this, he prayed for dismissal of suit.

¶45

Based on the said pleadings, the trial Court has

¶46

framed the following issues;

¶47

1. Whether the plaintiff proves that, he had taken suit property on lease from the defendant in the year 1982?

¶48

1. Whether the plaintiff proves defendant subsequently mortgaged the suit property in favour of him for Rs.25000/-, for a period of 4 years on 21.11.1988?

¶49

1. Whether the plaintiff proves that, defendant is liable to pay Rs.22,000/- as a further mortgage money as per the deed agreement dt.08.02.1989?

¶50

1. Whether the defendant proves that, this suit is barred by time?

¶51

1. Whether the plaintiff is entitled for the decree sought?

¶52

1. What order or decree?

¶53

¶54

NC: 2023:KHC-D:14432 RSA No. 1414 of 2006

¶55

Addl.Issue

¶56

1. Does the defendant proves that the suit is barred by principles of resjudicate as contended in para No.5 of the Written Statement.”

¶57

The plaintiff has examined his father as PW.1

¶58

and got marked Exs.P1 to P5 and defendant has examined himself as DW.1 and got marked Exs.D1 to D3. The Trial Court after hearing the parties and appreciating the evidence on record, has answered issue Nos.1 to 3 in the affirmative, issue No.5 partly in the affirmative, issue No.4 and Additional issue No.1 in the negative and decreed the suit of the plaintiff.

¶59

Aggrieved by the judgment and decree passed

¶60

by Trial Court, the defendant has filed appeal in R.A.No.93/2001 on the file of Civil Judge (Sr.Dn) and CJM, Gadag (for short ‘First Appellate Court’). The First Appellate Court after hearing the arguments of both sides has raised following points for consideration.

¶61

Whether the principles of resjudicata is applicable?

¶62

Whether the suit is time barred ?

¶63

7 - NC: 2023:KHC-D:14432 RSA No. 1414 of 2006

¶64

Whether the judgment & decree of the trial court required interference ?

¶65

What order/decree ?

¶66

The First Appellate Court has answered point

¶67

No.1 and 3 in the affirmative and point No.2 as does not

¶68

survive for consideration and allowed the appeal and reversed the judgment and decree passed by Trial Court and dismissed the suit of plaintiff. Aggrieved by the said judgment and decree passed by First Appellate Court, the plaintiff has filed this Regular Second Appeal. This Regular Second Appeal came to be admitted to consider the following substantial questions of law.

¶69

“Whether the Lower Appellate Court was justified in dismissing the suit of the plaintiff on the ground of resjudicata when the claim putforth in their suit was totally different from the earlier suit though it was between the same parties ?”

¶70

Heard learned counsel for the appellant. None appeared for the respondents.

¶71

Learned counsel for the appellant would contend that the res-judicata is not applicable to the case

¶72

8 - NC: 2023:KHC-D:14432 RSA No. 1414 of 2006

¶73

on hand. The First Appellate Court erred in holding that suit is hit by principles of res-judicata. He contended that issue involved in O.S.No.447/1996 is regarding whether amount of Rs.22,000/- advanced by the plaintiff to the defendant on 08.02.1989 is part of mortgage money and whether it require to be repaid for redemption of mortgage as prayed in O.S.No.447/1996. There is no issue involved in the said suit that whether plaintiff is entitled to recover the said amount of Rs.22,000/- from the defendant or not. Therefore, Trial Court considering the said aspect has rightly held that the res-judicata is not applicable. The First Appellate Court misconstrued the facts, the law and has erred in holding that the suit of plaintiff is barred by res-judicata. With this, he prayed to set-aside the judgment and decree passed by First Appellate Court and affirm the judgment and decree passed by Trial Court.

¶74

Having heard learned counsel for the appellant,

¶75

this Court has perused the impugned judgment and decree and Trial Court records.

¶76

9 - NC: 2023:KHC-D:14432 RSA No. 1414 of 2006

¶77

The plaintiff who was mortgagee under the mortgage deed dated 21.11.1988 to protect his possession

¶78

over the mortgaged property i.e., shop bearing CTS No.1701/2D Grain Market, Gadag has filed the suit for the relief of injunction in O.S.No.128/1995. In that suit, in written statement, defendant has admitted the receipt of mortgaged money of Rs.25,000/- and additional amount received in a sum of Rs.22,000/- from the plaintiff. The said written statement is marked at Ex.P5. The relevant portion of said written statement are marked at Ex.P5(a), which has been extracted in para No.17 of the said judgment. Even after admitting the receipt of said amount of Rs.22,000/- from the plaintiff, the defendant has filed suit for redemption of mortgage only by contending that he is required to pay Rs.25,000/- i.e., mortgage money in O.S.No.447/1996. In the said suit, the plaintiff has taken up defence that an amount of Rs.22,000/- advanced to the defendant on 08.02.1989, is also part of the mortgage money. In the said suit in O.S.No.447/1996, the Court has held that Rs.22,000/- is not the part of mortgage money

¶79

10 - NC: 2023:KHC-D:14432 RSA No. 1414 of 2006

¶80

and it is not required to be paid for redemption of mortgage and so holding decreed the suit of defendant seeking redemption of mortgage. In the said suit, there is no issue involved whether plaintiff herein is entitled to recover the said amount of Rs.22,000/- from the defendant or not. After passing the judgment and decree in O.S.No.447/1996, plaintiff has filed present suit for recovery of Rs.22,000/- based on the agreement dated 08.02.1989 i.e., Ex.P.3 and also admission of defendant made in written statement filed in O.S.No.128/1995 (Ex.P5). The issue involved in the present suit is whether plaintiff is entitled to recover an amount of Rs.22,000/from the defendant or not. The said issue was not involved in O.S.No.447/1996. Therefore, issue involved in the present suit is not substantially in issue in the previous suit in O.S.No.447/1996. Considering the said aspects, Trial Court has rightly held that principles of res-judicata under Section 11 of CPC, is not attracted and suit is not hit by res-judicata. The First Appellate Court erred in holding that it is covered under the explanation IV of Section 11 of

¶81

11 - NC: 2023:KHC-D:14432 RSA No. 1414 of 2006

¶82

CPC. In view of the above, the substantial question of law

¶83

is answered accordingly. In the result, the following:

¶84

ORDER

¶85

The Regular Second Appeal is allowed.

¶86

The judgment and decree passed in R.A.No.93/2001

¶87

dated 24.03.2006 by learned Civil Judge (Sr.Dn), Gadag is set-aside.

¶88

O.S.No.324/1997, on the file of learned Prl. Civil Judge (Jr.Dn), Gadag, is affirmed.

¶89

Sd/JUDGE

¶90

DSP & AM CT:BCK List No.: 2 Sl No.: 1

Sri Basavaraj v. Umashankarayya

Case brief

What is this about?

What did the court decide?

Sri Basavaraj v. Umashankarayya

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Rajshekhar S/O. Neelakantayya Hiremath Vs the State of Karnataka

Chandrappa H S/O Nagamma Vs the State of Karnataka

Smt Preethi W/O Santosh Nayak Vs Fakkirappa S/O Puttappa Gudageri

Dinesh S Vs the State of Karnataka

Ramu S/O Krishna Doddamani Vs the State of Karnataka

Mohammad Salim S/O Amirsab Mujawar Vs the State of Karnataka