Mr B Mohan Singh S/O Late Bhol Singh Vs B N Padmanabha S/O Late B Narayana Rao

BOTH CARRYING ON BUSINESS UNDER THE NAME AND STYLE OF MAHALAXMI FANCY STORES GROUND FLOOR AT NO.1108/A NEW NO.1108/A-69-1, 10^TH MAIN 4^TH CROSS ROAD, RPC LAYOUT VIJAYNAGAR, BANGALORE-40.

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…APPELLANTS

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Digitally signed by NAGARAJA B M Location: HIGH COURT OF KARNATAKA

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(BY SRI. G. NATARAJ AND SRI. V. SATHISH, ADVOCATES)

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AND:

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B N PADMANABHA S/O LATE B. NARAYANA RAO R/AT NO.12, BLOCK VI 2^ND CROSS, HEALTH DEPARTMENT CAGAR, RAMAKRISHNA 'H' BLOCK MYSORE-22.

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MRS. K.S. LAKSHMI W/O K.V. SAMPATHKUMAR

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AGED ABOUT 39 YEARS R/AT NO. 1^ST FLOOR OF BUIDLING BEARING NO.1108/A, 10^TH MAIN 4^TH CROSS ROAD, RPC LAYOUT VIJAYNAGAR, BENGALURU 560 040.

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…RESPONDENTS

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(BY SRI. S.G. BHAGAVAN, ADVOCATE FOR R2; R1 - B.N. PADMANABHA - SERVED AND UNREPRESENTED)

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THIS RFA IS FILED U/SEC.96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 21.03.2012 PASSED IN O.S.1759/2009 ON THE FILE OF THE XII-ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE, DISMISSING THE SUIT FOR DECLARATION AND INJUNCTION.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The captioned regular first appeal is by the unsuccessful plaintiffs assailing the judgment and decree rendered in O.S.No.1759/2009.

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For the sake of convenience, the parties are referred to as per their rank before the trial Court.

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3. The facts of the case are as under:

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The plaintiffs instituted the suit seeking a declaration

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that the Schedule ‘B’ property forms part and parcel of the Schedule ‘A’ property. It is their specific case that Schedule ‘A’ property was conveyed in their favour by defendant No.1 under a registered sale deed dated 30.03.2000. Consequentially, the plaintiffs sought a declaration that the possession of defendant No.2 over Schedule ‘B’ property is illegal and unlawful and prayed for a direction against defendant No.2 to quit, vacate, and hand over vacant physical possession of Schedule ‘B’ property, along with the relief of perpetual injunction.

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The defendants entered appearance upon

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service of summons. Defendant No.1 filed his written statement seeking dismissal of the suit on the ground that the plaintiffs’ claim stood substantially adjudicated in O.S.No.6195/2005 and, therefore, the present suit is barred by the principles of estoppel and res judicata. While

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denying the plaint averments in toto, defendant No.1 contended that under the sale deed dated 30.03.2000, he conveyed only the ground floor and not the first floor. It was further asserted that the plaintiffs’ claim that they had

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constructed the first floor was directly in issue and stood adjudicated in the earlier suit. Defendant No.1 specifically pleaded that he himself had constructed the first floor during the years 1992–93 and thereafter conveyed the same to defendant No.2. Defendant No.2, claiming title over Schedule ‘B’ property, filed a separate written statement substantially adopting and supporting the defence taken by defendant No.1.

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Based on the rival pleadings, the trial Court framed issues and permitted the parties to lead evidence. Upon appreciation of the material on record and after adverting to the judgment and decree passed in O.S.No.6195/2005, as also the withdrawal of the Regular First Appeal in RFA.No.1042/2008 filed by the plaintiffs, the trial Court recorded a finding that the plaintiffs’ claim

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over Schedule ‘B’ property stood conclusively adjudicated in the earlier round of litigation. The trial Court further held that the plaintiffs’ claim of right, title, and possession over Schedule ‘B’ property and the relief of possession in the nature of mandatory injunction had been expressly negatived in O.S.No.6195/2005. Consequently, the trial Court held that the present suit is barred by the doctrine of res judicata under Section 11 of the Code of Civil Procedure and dismissed the suit.

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Aggrieved by the judgment and decree passed by the Court of first instance in O.S.No.1759/2009, the plaintiffs have preferred the present appeal.

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Learned counsel appearing for the plaintiffs, reiterating the grounds urged in the appeal memorandum, vehemently contended that the earlier suit in O.S.No.6195/2005 was confined to the relief of mandatory injunction and, therefore, the plaintiffs are entitled to maintain the present comprehensive suit for declaration of

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title. It is urged that merely because the plaintiffs suffered a decree in the earlier suit, the bar under Section 11 of CPC would not operate against the present suit.

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Per contra, learned counsel appearing for defendant No.2, inviting the attention of this Court to the pleadings, issues, and findings recorded in O.S.No.6195/2005, submitted that Issue Nos.1 and 2 therein squarely and directly adjudicated the plaintiffs’ claim of title over the suit schedule property. It is contended that the present suit for declaration was instituted during the pendency of the Regular First Appeal in RFA.No.1042/2008 and, thereafter, the appeal was withdrawn, clearly demonstrating an attempt to re-agitate concluded issues. According to the learned counsel, the present proceedings amount to a gross abuse of the process of Court, warranting dismissal of the appeal with exemplary costs.

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8. Having heard the learned counsel appearing for

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the parties and upon careful consideration of the material on record, the following points arise for consideration:

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"(i) Whether the present suit filed by the plaintiffs seeking a declaration that Schedule ‘B’ property forms part and parcel of Schedule ‘A’ property conveyed under the registered sale deed dated 30.03.2000 and further seeking possession of Schedule ‘B’ property from defendant No.2 is barred by the doctrine of res judicata under Section 11 of the Code of Civil Procedure?

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(ii) Whether the institution of the present suit during the pendency of RFA.No.1042/2008 and the subsequent withdrawal of the said appeal, followed by re-agitation of the same cause of action, amounts to abuse of the process of Court, warranting dismissal of the appeal with exemplary costs?"

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Findings on points (i) and (ii):

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Before adverting to the merits of the case on

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hand, it becomes necessary for this Court to take note of the earlier proceedings instituted by the plaintiffs. In that view of the matter, this Court deems it appropriate to extract the relevant pleadings in O.S.No.6195/2005, which read as under:

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"2. It is submitted that the plaintiffs are the absolute owners of the Suit Schedule Property i.e. Southern portion of the Eastern Side Property bearing No. 1108/A, presently bearing Corporation No. 1108/A, situated in 10^th Main Road, Railway Line Pipe Line Extension, R.P.C. Layout, Vijayanagar II Stage, Bangalore morefully described in the Schedule hereunder having purchased the same from the defendant through a Sale deed dated 30.3.2000 Registered as Document No.4914 of 1999-2000, Book I, Volume 2188, at pages 154 to 161, in the office of the sub Registrar, Srirampuram, Bangalore. The Sale deed dated 30.3.2000 is herevwith produced as Document No.1. It is submitted that subsequent to the purchase of the Schedule Property Khata of the Schedule Proverty has been transferred in favour of the plaintiffs in the records of Bangalore Mahangara Palike and the plaintiffs have paid up to date tax to the Bangalore Mahangara Palike. It is submitted

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that Khata Certificate and Tax Paid Receipt issued by the Bangalore Mahangara Palike are here with produced as Documents No.2 and 3.

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3. It is submitted the defendant has retained other portion of the property adjacent to the Suit Schedule Property. It is submitted that the plaintiffs have put up first floor construction in the Schedule Property, the defendant approached the plaintiffs to allow him to utilize the first floor premises for his own occupation as it will be very convenient for him as he is owner and in possession of the adjacent other side portion of the property. The defendant has assured and promised to hand over the vacant possession of the first floor premises inmediately after two years however the defendant requested the plaintiffs to grant further time for handing over the possession of the first floor premises of the Suit Schedule Property. It is submitted that to maintain cordial relationship the plaintiffs granted further time and allowed to utilise the first floor premises of the Schedule Property as agreed mutually. …….."

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(emphasis supplied)

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This Court also deems it fit to extract the prayer

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sought in the earlier suit in O.S.No.6195/2005, which reads as under:

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"WHEREFORE the plaintiff prays for the judgment and decree against the defendants as under:

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a. For mandatory injunction directing the defendant to handover the vacant possession of the first floor of the suit Schedule Property,

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b. Permanent Injunction restraining the defendant or his agents or any body claiming through him from demolishing or effecting structural alterations to the first Floor of the Suit Schedule Property in any manner,

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c. And such other relief's as this Hon'ble Court deems fit to grant under the circumstances of the case in the interest of justice and equity."

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(emphasis supplied)

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The judgment rendered by the trial Court in the

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earlier suit bearing O.S.No.6195/2005 has a direct bearing on the determination of whether the principles of res judicata are attracted to the present case. Therefore, it would be apposite for this Court to extract the issues framed in O.S.No.6195/2005, which read as under:

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"1. Whether the plaintiffs prove that they are the owners of the first floor of the suit schedule property?

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2. Whether the plaintiffs prove that they have constructed the first floor of the suit schedule property and were in possession of the same?

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3. Whether the plaintiffs prove the defendant took the first floor of suit schedule property as a licencee for a period of two years and that the plaintiffs permitted the defendant to continue the licence from time to time?

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4. Whether the plaintiffs prove that they terminated the licence by issuing legal notice dated 20.07.2005?

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5. Whether the plaintiffs are entitled for Mandatory Injunction order directing defendant to hand over possession of first floor of suit schedule property to plaintiffs?

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6. Whether the plaintiffs are entitled for permanent injunction as sought for?

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7. Whether the defendant proves that the suit is not properly valued and per court fee is not paid?

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8. Whether the defendant proves that suit is not maintainable?

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9. What Order?"

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(emphasis supplied)

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The trial Court, in the earlier round of litigation

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in O.S.No.6195/2005, has exhaustively examined the plaintiffs’ claim over the first floor of the suit schedule

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property, which is now described as Schedule ‘B’ property

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in the present proceedings. While adverting to Issue Nos.1

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and 2, the trial Court recorded a categorical finding that the plaintiffs failed to establish that they had purchased the first floor of the building, which forms the subject matter of the present suit. Paragraphs 12 and 13 of the judgment in O.S.No.6195/2005 are of particular relevance, wherein the plaintiffs’ claim of right and title over Schedule ‘B’ property has been meticulously analysed and adjudicated. Accordingly, paragraphs 12 and 13 are extracted hereunder, which read as follows:

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"12. Relying upon the above decisions, the Learned Counsel for the plaintiffs has vehemently argued that when the plaintiff has purchased the ground floor portion of the building, it includes all the structures and rights arising thereon. As such the plaintiffs are the owners of the first floor portion of the building which was constructed by them subsequent to the purchase. As already stated that the plaintiffs have failed to establish the alleged construction of the first floor portion of the building to the satisfaction of this court and the plaintiffs have not placed any iota of material to establish that they have put up construction on the first floor portion of the building after purchase of the ground floor portion of the building under the sale deed as per Ex P.1. The plaintiffs have produced number of photographs. On

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perusal of the same it reveals that the building is consisting of a ground and first floor portion. The defendant in his evidence has admitted that the first floor portion appears to be newly constructed when compared to the ground floor portion of the building. Just because the first floor portion appears to be newly constructed building, it cannot be said that the said portion of the building has been constructed by the plaintiffs, in the absence of cogent and acceptable material on record.

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13. On perusal of the provisions of Section 8 of the Transfer of Property Act, it is clear that "unless a different intention is expressed or necessarily implied a transfer of land passed to the transferee all the interest the transferor is capable of passing in the land as well as things attached to the earth". In the present case, the plaintiffs have mainly relied upon the sale deed as per Ex.P.1 in order to establish their right over the suit schedule property. As already stated that the recitals of the sale deed reveals that the defendant has only sold the ground floor shop premises having RCC roofed building measuring 215 sq.ft. only. As such, this court is of the view that the plaintiffs have failed to establish that they have purchased the property absolutely without any obstructions and they have put up construction in the first floor of the said building and allowed the defendant to reside in the first floor portion of the building as a licensce without any rents. It is pertinent to note that the plaintiffs have allowed the defendant to reside in the suit

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schedule property as a licensee without any rents. No prudent owner in Bangalore city will allow a third party to reside in their building without paying any rents or license fee. As such, it is hardly acceptable that the defendant was allowed to reside in the suit schedule property without any rents as a licensee as alleged and claimed by the plaintiffs. Under these circumstances this court is of the view that the plaintiffs have utterly failed to prove Issue Nos.1 & 2 to the satisfaction of the court. Hence, I answer Issue Nos.1 & 2 in the Negative accordingly."

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(emphasis supplied)

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The plaintiffs, having suffered a decree in O.S.No.6195/2005, preferred a Regular First Appeal in RFA.No.1042/2008. During the pendency of the said appeal, the plaintiffs ventured to re-litigate issues which had already been directly and substantially adjudicated in O.S.No.6195/2005. The present suit came to be instituted on 09.03.2009, admittedly during the pendency of RFA.No.1042/2008, which was filed challenging the judgment and decree in O.S.No.6195/2005, wherein the trial Court had categorically held that the plaintiffs failed to

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establish their right and title over the first floor of the building, now described as Schedule ‘B’ property.

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It is further not in dispute that the plaintiffs consciously withdrew RFA.No.1042/2008 on 03.02.2010, without disclosing the pendency of the present suit instituted on the very same cause of action and seeking substantially identical reliefs. The aforesaid conduct clearly demonstrates an attempt to circumvent the binding findings recorded in the earlier proceedings.

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In this backdrop, this Court deems it appropriate to extract paragraph 9 of the plaint in O.S.No.1759/2009, as also the prayer sought therein, which read as under:

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"9. The Plaintiffs submit that as the relief of declaration and possession has not at all been sought for by them in the previous suit in O.S.6195/2005 against the first Defendant on the ground that the first Defendant was in their permissive possession and they thought it was not necessary to seek any such relief. Subsequently after the disposal of the said suit the first Defendant has vacated the Schedule-B Property and inducted the second

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Defendant herein illegally thereby conveying the Schedule-B property of the Plaintiffs to the second Defendant without any right and authority whatsoever over the same. In view of the subsequent change of circumstances, execution of the sale deed and placing the second Defendant in possession of the Schedule-B, property, the Plaintiffs have to approach this Hon'ble Court seeking the relief of declaration and possession and for other reliefs against the Defendants. The reliefs sought for in the earlier suit were entirely different than the one sought for in the present suit. Furthermore the prevailing circumstances as on the date of filing of the earlier suit were entirely different, as the first Defendant was in permissive possession of the Schedule-B Property and was assuring to handover possession to the Plaintiffs. Subsequently during pendency of the appeal the first Defendant inadvertently with a malafide intention to enrich himself and to embarrass the Plaintiffs has transferred the remaining portion retained by him and the Schedule-B property to the second Defendant thereby creating multiplicity over the same. As such the Plaintiffs have to file the present suit against both the Defendant. The first Defendant has wrongly conveyed the Schedule-B property to the second Defendant and that the sale is in contravention with section 52 of the transfer of property Act attracting law of lispendence. Thus the second Defendant did not get any ownership and possession to the Schedule-B property."

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Prayer:

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"i) To declare that the Schedule-B property is the part and parcel of the Schedule-A property which was conveyed to the Plaintiffs by the first Defendant under the registered sale deed dt.30/03/2000 which was registered as document bearing No.4914/99-2000 of Book:1, Volume:2188, pages: 154 to 161, which was registered before the sub-Registrar, Srirampuram, Bengaluru;

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ii) To declare that the possession of the Schedule-B property of the second Defendant is illegal and unlawful and that she cannot continue to be in possession there of and thus direct the second Defendant to quit, deliver and handover vacant physical possession of the Schedule-B property to the Plaintiffs.

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iii) Grant an order of permanent Injunction restraining the second Defendant, her agents, servants, attorneys, officials, or person/s claiming under her or through her in any way alienating the remaining portion of property bearing No.1108/A by including the Schedule-B property to any the third parties on the basis of the sale deed dt.14/10/2008 by inducting any of the third parties.

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iv) Grant an order of Mandatory Injunction directing both the Defendants to go for a rectification of the Schedule-C property shown in the sale deed dt.14/10/2008 thereby rectifying the extent which was retained in the ground floor of the same property by the

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first Defendant after conveying the southeastern portion to the Plaintiffs thereby deleting the Schedule-B property from their sale deed which was illegally included with a malafide intention.

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v) Grant the costs of this suit.

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vi) Grant such other order/s and relief/s, as this Hon'ble Court may deem fit to grant in the circumstances of the case, in the interest of justice and equity."

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(emphasis supplied)

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If the reliefs sought in the present suit are

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juxtaposed with the reliefs claimed in O.S.No.6195/2005, read in conjunction with the pleadings in the earlier suit, it becomes manifest that though the plaintiffs in O.S.No.6195/2005 couched the relief in the form of mandatory injunction seeking delivery of possession, the

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very foundation of the earlier suit rested on the assertion of title over the first floor of the property, which is now described as Schedule ‘B’ property in the present proceedings. A careful reading of paragraph 2 and a portion of paragraph 3 of the plaint in O.S.No.6195/2005 unmistakably reveals that the plaintiffs had categorically

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asserted ownership over the first floor. The trial Court, while adjudicating Issue Nos.1 and 2, has comprehensively examined the said claim and has unequivocally held that the plaintiffs failed to establish their right, title, or interest

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over the first floor of the suit schedule property. The said findings, recorded on merits, which is extracted supra, conclusively put to rest the plaintiffs’ claim over the first floor, thereby giving a complete quietus to the controversy. Consequently, the suit in O.S.No.6195/2005 came to be dismissed.

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In that view of the matter, this Court is of the considered opinion that the only remedy available to the plaintiffs was to diligently prosecute the Regular First Appeal preferred in RFA.No.1042/2008. Instead, either being wrongly advised or acting with deliberate intent, the plaintiffs chose to institute a second suit, reasserting title over the very same property which stood conclusively adjudicated against them in O.S.No.6195/2005. The institution of the second suit was wholly impermissible in

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law. Strangely, after having filed the second suit on the

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same cause of action, the plaintiffs consciously withdrew RFA.No.1042/2008, without disclosing to this Court the pendency of the subsequent suit. Though the reliefs in the second suit are ingeniously worded, in substance and effect, the plaintiffs have sought to re-agitate the very same reliefs which were claimed and negatived in O.S.No.6195/2005.

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This Court cannot be oblivious to the manner in which the judicial process has been misused. Civil litigation consumes considerable judicial time and imposes a heavy burden on litigants, who are compelled to attend Court on multiple occasions. The earlier suit instituted in the year 2005 was adjudicated in the year 2008. Having suffered an adverse decree, the plaintiffs, instead of accepting the finality of the adjudication or pursuing the statutory appeal

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to its logical conclusion, embarked upon a second round of litigation in O.S.No.1759/2009 on the very same set of facts. As a result, litigation that commenced in the year

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2005 has been kept alive till date, forcing the defendants

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to defend a wholly frivolous and vexatious claim, despite

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the plaintiffs having suffered a categorical adjudication on merits.

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In the light of the findings recorded by the trial Court on Issue Nos.1 and 2 in O.S.No.6195/2005, there is absolutely no ambiguity or scope for doubt regarding the adjudication of title. The trial Court, in unequivocal terms, has held that the plaintiffs are not the owners of the first floor of the building, now referred to as Schedule ‘B’ property. It has been categorically found that defendant No.1 alone constructed the first floor and that the plaintiffs

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had purchased only the ground floor under Ex.P1. The trial Court has further negatived the plaintiffs’ plea that defendant No.1 was inducted as a licensee in respect of the first floor. Once a finding on title has been conclusively

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rendered by a competent Court, the plaintiffs’ attempt to re-agitate the same issue by instituting a second suit is

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nothing but a clear misuse of the judicial process. This is a

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classic case of re-litigation and abuse of process of Court.

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Though the present case squarely attracts the bar under Section 11 of the Code of Civil Procedure, this Court cannot remain a mere spectator and dispose of the appeal only on merits. The conduct of the plaintiffs in instituting a second suit during the pendency of RFA.No.1042/2008 and thereafter unconditionally withdrawing the appeal by suppressing the filing of the subsequent suit, clearly demonstrates a calculated attempt to subvert the judicial process. Having suffered a judgment on merits, the plaintiffs have ventured to relaunch a frivolous and vexatious litigation, thereby deliberately subjecting the defendants to a second round of unnecessary litigation. In such circumstances, imposition of exemplary costs is imperative, not only to compensate the defendants but also to deter litigants from indulging in similar misuse of Court process.

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For the foregoing reasons, this Court answers the

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points formulated for consideration in the Affirmative.

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This Court is conscious that imposition of costs

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is not to be a matter of routine. However, the facts of the present case clearly warrant the levy of exemplary costs. The plaintiffs, having suffered a judgment on merits in O.S.No.6195/2005 wherein their claim of title over the first floor stood conclusively negatived, consciously chose to institute a second suit on the very same cause of action during the pendency of the Regular First Appeal and thereafter withdrew the appeal suppressing the pendency of the subsequent suit. The present proceedings are not a

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bona fide invocation of jurisdiction but a deliberate attempt to re-litigate issues which had attained finality, thereby abusing the process of the Court. The Hon’ble Supreme Court has repeatedly cautioned that such re-

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agitation of concluded issues, forum shopping, and suppression of material facts strike at the very root of the

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administration of justice and must be dealt with firmly by imposing realistic and deterrent costs.

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The defendants, particularly defendant No.2, have been compelled to defend a second round of wholly unwarranted litigation spanning several years, despite a clear adjudication in their favour in the earlier suit. Valuable judicial time has also been consumed in entertaining proceedings which ought never to have been instituted. In such circumstances, merely dismissing the appeal without costs would amount to condoning the plaintiffs’ conduct and would fail to serve as a deterrent against similar misuse of the judicial process. Therefore, having regard to the prolonged nature of the litigation, the conscious suppression of material facts, the attempt to circumvent a binding judgment, and the hardship caused to defendant No.2, this Court is of the considered view

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that imposition of exemplary costs of Rs.1,00,000/- is just, reasonable, and necessary to meet the ends of justice.

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