Hormusji Cowasjee Dinshaw Trust Vs Sri Abdul Hameed Khan

HORMUSJI COWASJEE DINSHAW TRUST REPRESENTED BY ITS TRUSTEE SRI SAROOSH L.DINSHAW PARSI, MAJOR 2ND FLOOR, ADENWALLA BUILDINGS 121, NAGINDAS MASTER ROAD MUMBAI - 400 023.

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SRI SAROOSH C DINSHAW S/O COWASJEE NUSSERWANJI DINSHAW AGE 57 YEARS RAT SIR H.C. DINSHAW BUILDING 1ST FLOOR NO.16, HORNIMAN CIRCLE FORT, MUMBAI - 400 001.

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Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA

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SRI JEHANGIR R PATEL AGE 55 YEARS

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S/O RUTTON DOSABSAI PATEL R/AT SIR H C DINSHAW BUILDING 1ST FLOOR NO.16, HORNIMAN CIRCLE FORT, MUMBAI - 400 001.

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…PETITIONERS

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(BY SRI RAMACHANDRA H, ADV., FOR SRI H.R. ANANTHAKRISHNAMURTHY, ADV.)

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AND:

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SRI ABDUL HAMEED KHAN S/O KHWAJA GULAM HASSAN KHAN MUSLIM, MAJOR R/A NO.22/1, MILLER ROAD BENSON TOWN, 1ST CORSS BENGALURU-560 002.

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HC-KAR

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SRI PASHA MUSLIM, MAJOR NO.8-B, CUNNINGHAM ROAD CRESCENT ROAD BENGALURU - 560 052.

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SRI K.L. SRIHARI SINCE DEAD BY LRS.

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3a. SMT. RAJALAKSHMI W/O LATE K L SRIHARI AGED ABOUT 71 YEARS.

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3b. SRI K.H. GURUNATH S/O LATE K.L. SRIHARI AGED ABOUT 52 YEARS.

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3c. SMT. DHANALAKSHMI D/O LATE K.L. SRIHARI AGED ABOUT 52 YEARS.

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3d. SRI K.H. SRINIVAS S/O LATE K.L SRIHARI AGED ABOUT 49 YEARS.

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3e. SRI K.H. RADESHYAM S/O LATE K.L. SRIHARI AGED ABOUT 47 YEARS.

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3f. SMT. J.G. HEMAMALINI D/O LATE K.L. SRIHARI AGED ABOUT 44 YEARS.

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3g. SMT. S.R. VYJAYANTHIMALA D/O LATE K.L SRIHARI AGED ABOUT 40 YEARS.

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LRs No.3a. TO 3g ARE RESIDING AT NO.9 SESHADRI ROAD BENGALUR - 560 009.

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SRI K.L.A PADMANABHASA HINDU, MAJOR KHODY HOUSE NO.26/1, SANKEY ROAD

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HC-KAR

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BENGALURU - 560 052.

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KHODAY INDIA LTD., KHODAY HOUSE A COMPANY INCORPORATED UNDER THE COMPANIES ACT WITH ITS OFFICE AT NO.26/1, SANKEY ROAD BENGALURU - 560 052 REPRESENTED BY SRI K.L SRIHARI.

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SRI VEERESH SINGH MAJOR, NO.22/1, MILLER ROAD BENSON TOWN 1^ST CROSS BENGALURU - 560 002.

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M/S. L.K. TRUST A PRIVATE TRUST, HAVING ITS REGISTERED OFFICE AT NO.9 SESHADRI ROAD BENGALUR - 560 009 REPRESENTED BY ITS AUTHORIZED TRUSTEE SRI K.L. SRIHARI.

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…RESPONDENTS

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(BY SRI S.V. BHAT, ADV., FOR R-3(a, b, d & e), R-4, R-5 & R-7; R-2, R-3(c), R-3 (g), SERVED AND UNREPRESENTED; SERVICE OF NOTICE TO R-1 & R-6 HELD SUFFICIENT (V/O DTD:28.08.2025)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD14.11.2018 IN O.S.NO.7941/2008 PASSED BY THE LEARNED XIV ADDL,. CITY CIVIL JDUGE AT BENGALURU [CCH NO.28] ON IA NO.16 VIDE ANNEXURE-H.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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HC-KAR

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ORAL ORDER

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This writ petition under Article 227 of the

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Constitution of India is filed by plaintiffs with a prayer to quash

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the order dated 14.11.2018 passed on I.A.No.XVI in O.S.No. 7941 of 2008 by the Court of XIV Additional City Civil Judge, Bangalore.

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Heard the learned counsel for the parties.

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Petitioners herein have filed O.S.No.7941 of 2008

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seeking relief of declaration of their title in respect of suit schedule property, for possession of the suit property from the defendants and a prayer is also made for future mesne profits. In the said suit, the contesting defendants have filed their written statement. I.A.No.XVI was filed by defendant no. 7 under Order XIV Rule 5 r/w Section 151 of CPC to frame additional issue as proposed in the application. The said application was opposed by the plaintiffs by filing objections. The trial court vide the order impugned dated 14.11.2018 has allowed I.A.No. XVI and being aggrieved by the same, plaintiffs are before this Court.

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HC-KAR

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Learned counsel for the petitioners submits that similar application was filed by defendant no.7 along with the other defendants in I.A.No.XIII and the trial Court by order dated 21.04.2018 has rejected the said application. The order made on I.A.No.XIII was not challenged by the applicants in the said application and therefore the same has attained finality. Therefore, it was not open for the applicant in IA No.XIII to file a fresh application in I.A.No.XVI seeking the very same relief. In support of his arguments, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of ARJUN SINGH V. MOHINDRA KUMAR & ORS - AIR 1964 SC 993 .

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Per contra , learned counsel for defendant no.7 submits that order passed on I.A.No.XIII was erroneous because defendant no.7 in his written statement has raised a specific plea with regard to the correctness of the valuation of the suit and Court fee paid by the plaintiffs. Therefore, the prayer made in I.A.No.XVI is virtually to review the order passed on I.A.No.XIII. No fault can be found in the said order. Accordingly, he prays to dismiss the petition.

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HC-KAR

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Perusal of the material on the Court would go to show that I.A.No.XIII was filed by defendant No.3(a) to 3(g), 4, 5 and 7 under Order XIV Rule 5 r/w Section 151 of CPC with a prayer to frame additional issue and treat the said issue as preliminary issue. The proposed additional issue in I.A.No.XIII reads as follows:

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"Whether the plaintiffs prove that the relief of declaration and possession as per prayer (i) and (ii) has been valued properly and court fee paid by plaintiffs is sufficient?"

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The prayer made in I.A.No.XIII was opposed by the plaintiffs and the trial Court vide the order dated 21.04.2018 had rejected the prayer made by the applicants in I.A.No.XIII. Undisputedly, the order passed by the Trial Court on I.A.No.XIII in which defendant no. 7 / petitioner herein was a party has attained finality. I.A.No.XVI was subsequently filed by defendant no.7 seeking the very same relief which was sought for by him in I.A.No.XIII. The trial Court has erred in allowing the said application in view of the principle laid down by the Hon'ble Supreme Court in the case of ARJUN SINGH (supra) wherein it is observed that principle of res judicata would be as much applicable to different stages of the

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HC-KAR

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same suit as to the findings or issues in different suits. Therefore, I am of the opinion that the order impugned passed by the trial Court cannot be sustained.

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