IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 2ND DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 11902 OF 2018 (GM-CPC) BETWEEN:
1. SMT LAKSHMI W/O LATE R V REVANNA, AGED ABOUT 55 YEARS, NO.7/1,VIVEKANANDA NAGAR, KARTHIGUPPE MAIN ROAD, BANGALORE-560 085.
2. MS R.PADMA D/O LATE R V REVANNA, AGED ABOUT 36 YEARS, NO.20, KRISHNADHAMA 7TH CROSS, 3RD PHASE,5TH BLOCK, BSK 3RD STAGE, BANGALORE-85.
3. SRI R RAVI KUMAR S/O R V REVANNA, AGED ABOUT 34 YEARS, NO.7/1,VIVEKANANDA NAGAR, KARTHIGUPPE MAIN ROAD, BANGALORE-560 085.
4. MS R BHAGYA D/O R V REVANNA, AGED ABOUT 32 YEARS, NO.7/1,VIVEKANANDA NAGAR, KARTHIGUPPE MAIN ROAD, BANGALORE-560 085.
... PETITIONERS (BY SMT. T V HONNAMATHI, FOR SRI. CHANDRASHEKAR REDDY R A, ADVOCATE) AND:
1. SMT SUNITHA KRISHNA W/O LATE KRISHNA, HINDU,MAJOR NO.2243,LIG 7TH B MAIN ROAD, YELAHANKA NEW TOWN, BANGALORE-560 064 2. P G PRAKASH @ PRAKASH PRABHU S/O GOPALKRISHNA 63/1,II TEMPLE STREET, 15TH CROSS,MALLESHWARAM BANGALORE-560 003.
3. SYNDICATE BANK HAVING ITS HEAD OFFICE AT MANIPAL AND BRANCH OFFICE AT VASANTHANAGAR, BANGALORE-560 052.
REPRESENED BY ITS MANAGER.
(BY SRI. M MOHAN, ADVOCATE FOR R3;
... RESPONDENTS V.C.O DATED 06.08.2019 NOTICE TO R1 & R2 D/W) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER OF DISMISSAL OF THE APPLICATION FILED UNDER ORDER XVI RULE 1 R/W SEC.151 OF CPC TO SUMMON THE SUB-REGISTRAR TO PRODUCE THE DOCUMENT VIDE ORDER DATED 31.01.2018 PASSED IN O.S.NO.1462/2012 BY THE XXXIV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU VIDE ANNEX-A.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioners being the plaintiffs in a declaration suit as to the voidness of the subject Sale Deed in O.S.No.1462/2012 are invoking the writ jurisdiction of this Court for assailing the order dated 31.01.2018, whereby their application filed under Order XVI Rule 1 of CPC, 1908 for summoning the subject documents/register from the office of the jurisdictional Sub-Registrar, has been rejected. After service of notice the 3rd respondent-Bank having entered appearance through it’s panel counsel, resist the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, relief needs to be granted to the petitioners for the following reasons:
(a) the suit for declaration is that the subject Sale Deed is a concocted one; the original Sale Deed that was in the custody of the bank as a mortgagee is stated to be now in the custody of the CBI which was investigating the matter; whether the person who purports to have executed the Sale Deed is the executant or not, is being considered by the Court below and in the absence of original Sale Deed the production of the concerned Register from the office of the jurisdictional Sub-Registrar would facilitate due adjudication of the said issue;
(b) the contention of the respondent-Bank that the DRT and DRAT having recorded a finding as to one Sri R.V.Revanna being the husband of the 1st respondent- Smt.Lakshmi and being father of other respondents, has executed the said document and therefore there is no need for re-adjudication of the very same issue when the finding is already recorded by the DRAT under the Recovery of Debts Due to Banks and Financial Institutions, Act, 1993 since the same operates as res judicata is bit difficult to countenance, especially when the very issue as to the document being concocted not availing for consideration before DRT or DRAT;
(c) the contention that at para 6 of the DRAT judgment there are observations that tend to operate as res judicata may be true, but those observations do not constitute res judicata in terms of Sec.11 of CPC, 1908 inasmuch as the res judicata doctrine being wider one and only part of that being enacted in Sec.11 a suit can be resisted only on the ground of res judicata that avails within the four corners of this section; and, (d) even otherwise also summoning of the subject documents from the office of the jurisdictional Sub- Registrar would not in any way prejudice the case of the respondent-Bank at all since it will have an opportunity of examining the concerned witnesses and perusing the said registers if and when they are produced.
In the above circumstances, this writ petition succeeds; the impugned order is set at naught; the petitioners’ subject application having been favoured the Court below shall summon the concerned documents/Registers from the office of the jurisdictional Sub-Registrar, expeditiously.
It is made clear that this order shall not come in the way of Bank enforcing the award confirmed by the DRT and DRAT.
Sd/- JUDGE Snb/