IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF MARCH 2015 BEFORE THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA CRP NO.337/2014 BETWEEN:
1. SMT KANTHAMMA W/O ANJANEYA REDDY, AGED ABOUT 43 YEARS, REPRESENTED BY G.P.A.HOLDER SRI.A.ANANDA, S/O LATE ABBAIAH AGED ABOUT 50 YEARS, R/O SINGASANDRA VILLAGE, BEGUR HOBLI, BANGALORE SOUTH TALUK, BANGALORE DISTRICT.
2. A.ANAND S/O LATE ABBAIAH, AGED ABOUT 50 YEAR R/O SINGASANDRA VILLAGE, BEGUR HOBLI, BANGALORE SOUTH TALUK BANGALORE DISTRICT, BANGALORE URBAN.
... PETITIONERS (By Sri: VIVEKANAND V JALDE, ADV.) AND V VENKATESH S/O VENKATASWAMY AGED ABOUT 42 YEARS, R/AT NO.22, MADIVALA POST, JOGI COLONY, KORAMANGALA POST, BANGALORE-560 095. ALSO AT NO. 520/389, CHANNAKESHAVANAGAR HOSUR ROAD, BANGALORE-95 BANGALORE CITY.
... RESPONDENT (By Sri : ERAPPA REDDY M, ADV. FOR C/R) CRP FILED U/S 115 OF CPC, AGAINST THE JUDGEMENT AND ORDER DATED 22.11.2013 PASSED ON IA NO.2 IN O.S.26429/2013 ON THE FILE OF XIII ADDITIONAL CITY CIVIL JUDGE, BANGALORE, DISMISSING IA NO.2 FILED U/ORDER 7 RULE 11(a) AND (d) OF CPC.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard the learned counsel for the petitioner.
Present petition is filed under Section 115 of C.P.C. challenging the order of dismissal dated 22.11.2013 passed on I.A.II filed under Order 7 Rule 11(a) and (d) of CPC in O.S.26429/2013 which was pending on the file of XII Addl. City Civil Judge, Mayo Hall, Bangalore.
2. The learned Judge has framed point No.5 in O.S.26429/2013 in regard to the prayer sought for by the defendant to reject the plaint on the ground of non-disclosing the cause of action and suit being barred by law. The main ground, according to the defendant, as mentioned in the written statement, is that the suit filed in O.S.2649/2013 for relief of injunction is hit by the principles of resjudicata.
3. In the light of earlier judgment and decree passed in O.S.6699/1992 and the same being upheld by this Court in RFA 887/2003, as observed by the Trial Court, this aspect of resjudicata has to be considered by framing specific issue and that issue may be treated as the preliminary issue and parties may be asked to lead evidence on that aspect.
4. Hence no good ground is made out to interfere with the order passed by the learned Judge of the Trial Court. The apprehension of the learned counsel for the petitioner that respondent plaintiff will create third party interest is not well founded. Such apprehension will be protected in view of principles of lis-pendense under Section 52 of Transfer of Property Act.
5. With the above observation, the present petition is dismissed.
It is made clear that whoever purchases the property during the pendency of the suit, will purchase the same at his/her own risk.
Sd/- JUDGE DM