IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE CIVIL REVISION PETITION NO.502 OF 2018 BETWEEN:
HABITAT SPLENDOR OWNERS ASSOCIATION REGISTERED UNDER THE KARNATAKA APARTMENT OWNERSHIP ACT, 1972, HAVING ITS OFFICE AT ITPL MAIN ROAD, KUNDALAHALLI, BROOKFIELD NEAR CMR INSTITUTE, BANGALORE-560037 REPRESENTED BY ITS PRESIDENT MR AJIT RAO KARNAD. … PETITIONER (BY MR. DHANANJAY JOSHI, ADV.) AND:
1. SRI. TULASIRAM SON OF LATE MUNIREDDY AGED ABOUT 44 YEARS R/AT. DODDANAEKUNDI VILLAGE POST MARATHAHALLI BANGALORE-560037.
2. THE COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE HUDSON CIRCLE BANGALORE-560002.
3. THE ASSISTANT EXECUTIVE ENGINEER BRUHAT BENGALURU MAHANAGARA PALIKE HODDY SUB-DIVISION BANGALORE-560048.
… RESPONDENTS (BY MR. JANARDHANA G ADV FOR R1 MR. I.G. GACHCNINAMATH, ADV., FOR R2 & R3)) THIS CRP IS FILED UNDER SECTION 115 OF THE CPC, AGAINST THE ORDER DATED 06.09.2018 PASSED IN MISC.NO.583/2018 ON THE FILE OF THE PRINCIPAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, ALLOWING THE PETITION FILED UNDER SECTION 24 OF CPC.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.Dhananjay Joshi, learned counsel for the petitioner Mr.Janardhana G., learned counsel for the respondent No.1.
Mr.I.G.Gachchinamath, learned counsel for respondent Nos.2 and 3.
2. Heard on the question of admission. The petition is admitted for hearing. With consent of the parties, the same is heard finally.
3. In this petition under Section 115 of Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short) the petitioner has assailed the validity of the order dated 06.09.2018, by which petition preferred by the respondent No.1 under Section 24 of the Code has been allowed and O.S.No.583/2017 is transferred to CCH No.69 wherein O.S.No.495/2017 is pending 4. Facts giving rise to filing of the petition briefly stated are that petitioner filed a civil suit viz., O.S.No.495/2017 against respondent Nos.4 & 5 seeking the relief of permanent injunction restraining them from interfering with the suit property. The above suit is pending in the Court of Principal City Civil and Sessions Judge, Bengaluru. In the aforesaid civil suit, the issues are yet to be framed. On 21.01.2017, the petitioner filed a separate civil suit viz., O.S.No.583/2017 against respondent No.1 seeking a decree of permanent injunction. In the aforesaid civil suit, the respondent No.1 who is the defendant, has filed the written statement and Plaintiff Witness No.1 has been cross- examined. The respondent No.1 filed an application under Section 24 of the Code before Principal City Civil and Sessions Judge, Bengaluru seeking for a direction to dispose of both the civil suits analogously. The Principal City Civil and Sessions Judge has allowed the aforesaid application by an impugned order.
5. The learned counsel for the petitioner submitted that the Trial Court ought to have appreciated that in both the civil suits the parties are not same and the cause of action is also different. The attention of this court has also been invited to Section 22 of the Code and it is submitted that such a prayer should have been made at the earliest possible opportunity, which has been done in the instant case with delay after the pleadings are complete and PW1 has been cross- examined. In support of aforesaid submission, reference has been made to a decision of the Hon’ble Supreme Court in ‘DAV BOYS SENIOR SECONDARY SCHOOL AND OTHERS VS. DAV COLLEGE MANAGING COMMITTEE’, 2010 8 SCC 401. On the other hand, learned counsel for the respondent No.1 has invited the attention of this court to para 7 of the impugned order and has submitted that the relief sought in both the suits is in respect of a road and common question is involved in both the suits viz., whether the road is an internal road or not. Therefore, the Trial Court with a view to avoid possibility of conflicting judgments has rightly passed the order, which has been impugned in this petition.
6. I have considered the submissions made by the learned counsel for the parties and have perused the record. The relevant extracts of O.S.No.495/2017 and O.S.No.583/2017, which deals with cause of action reads as under:
“37. The cause of action for this suit first arose on 03.01.2013 when the defendants threatened to demolish the plaintiff’s compound wall in the schedule B property and subsequently on 23.01.2013, when the Defendants acted on their threat and illegally demolished the compound wall in the Plaintiff’s Schedule B Property. The Plaintiff was, sincerely, pursuing its Petition W.P.No.4294 of 2013, filed in the Hon’ble High Court on 24.01.2013, and which was withdrawn on 09.01.2017 as stated hereinabove.”
“39. The cause of action for this Suit arose on 07.12.2016 when the Defendant attempted to interfere in the Plaintiff’s schedule B Property. As the status of the Schedule B Property was one of the issues in the Plaintiff’s Petition, W.P.No.4294/2013 and as the Defendant herein was already a party therein, the Plaintiff had successfully secured an Order from the Hon’ble High Court restraining the Defendant from interfering in the Schedule B Property. The Plaintiff’s Petition W.P.No.4294 of 2013, was withdrawn on 09.01.2017 as stated hereinabove.”
From perusal of the plaints, it is evident that causes of action in both the suits are different and the parties in the suits are also different. An order of consolidation of suits is passed when on a single set of evidence both the civil suits can be decided. In the instant case, the causes of action as well as parties to both the civil suits are different and the civil suits have been instituted seeking the relief of permanent injunction. Therefore, if the evidence is adduced in one civil suit, with reference to the same, the other civil suit cannot be decided. So far as submission made by the learned counsel for the respondent No.1 that in case the civil suits are tried separately there is a possibility of conflict in judgment is concerned, suffice it to say that since the parties are different the findings recorded in one civil suit cannot be treated as res judicata. In the fact situation of the case, the impugned order passed by the Trial Court is modified and it is directed that both the civil suits shall be tried by CCH 69 separately.
Accordingly, the petition is disposed of.
Sd/- JUDGE ss