IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT CIVIL REVISION PETITION No.340 OF 2019 BETWEEN:
SMT. OBALAMMA W/O NARAYANAPPA AGED ABOUT 56 YEARS R/AT DALAVAIBAVI BEEDI EXTENSION, OLD PAVAGADA TOWN NOW CALLED KALIDASANAGARA PAVAGADA TOWN, PAVAGADA TALUK TUMKUR DIST.-572101.
(BY SRI.HARISH H.V. ADV.) AND SMT. YESHODAMMA W/O LATE SATHYANARAYANACHAR AGED ABOUT 50 YEARS R/AT DALAVAIBAVI BEEDI EXTENSION, OLD PAVAGADA TOWN NOW CALLED KALIDASANAGARA PAVAGADA TOWN, PAVAGADA TALUK TUMKUR DIST.-572 101.
... PETITIONER ... RESPONDENT THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC., 1908 AGAINST THE ORDER DATED 03.07.2019 PASSED ON IA NO.V IN OS NO.223/2015 ON THE FILE OF THE PRL.CIVIL JUDGE AND JMFC., PAVAGADA REJECTING THE IA NO.V FILED UNDER ORDER 7 RULE 11 OF CPC, FOR REJECTION OF PLAINT.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendant in O.S.No.223/2015 on the file of the Principal Civil Judge and JMFC at Pavagada is before this Court, assailing the order dated 03.07.2019 passed on I.A.No.V dismissing the application filed under Order VII Rule 11(d) of CPC.
2. Petitioner is the defendant and respondent is the plaintiff in O.S.No.223/2015 filed for the following reliefs:
“WHEREFORE, the plaintiff prays for a judgment and decree against the defendant for declaration of plaintiff’s title to the suit schedule property, declaring that the judgment and decree in O.S.No.388/2010 dated 03.02.2013 will not bind the lawful rights of plaintiff more particular southern schedule of defendant property and for costs and such other reliefs as the Hon’ble court deems fit to grant under the circumstances of the case in the interest of justice and equity.”
3. On appearance, the defendant filed written statement urging several contentions including the contention of resjudicata. The defendant also filed an application under Order VII Rule 11(d) of CPC to reject the suit as barred by principles of resjudicata. The defendant further contended that the defendant had filed the suit wherein the plaintiff was also a party in O.S.No.388/2010 which was decreed in favour of the defendant. Against the said judgment and decree, the plaintiff had filed R.A.No.97/2015 which was also dismissed on 04.01.2019 in respect of the same suit schedule property. Therefore, it was contended that the present suit is not maintainable.
4. The plaintiff/respondent herein filed objections opposing the application. It is contended in the objection that the suit schedule property in the present suit and in earlier suit in O.S.No.388/2010 are altogether different. Further, it was contended that the plaintiff in the present suit had sought for title on the basis of title deeds. The trial Court, under the impugned order rejected the application. Hence, the defendant is before this Court under Section 115 of the Code of Civil Procedure, 1908, assailing the rejection of the application.
5. Heard the learned counsel for the petitioner and perused the material on record. The only point urged by the learned counsel for the petitioner is that the suit is barred by principles of resjudicata, as the plaintiff was a party to the suit filed by the defendant in O.S.No.388/2010 wherein the defendant had sought for permanent injunction in respect of the suit schedule property and the same was allowed and R.A. filed by the plaintiff herein was dismissed. Hence, he submits that since the judgment and decree passed in O.S.No.388/2010 has attained finality, the present suit would not be maintainable.
6. On hearing the learned counsel for the petitioner and on perusal of the material on record, the only point which falls for consideration in this petition is as to whether the trial Court was justified in rejecting the application filed under Order VII Rule 11(d) of CPC. Answer to the above point is in the affirmative for the following reasons:
7. The court has to examine the application filed under Order VII Rule 11 of CPC having regard to the suit averments. The defense or written statement averments would be of no relevance at the time of considering the application. Copy of the plaint is produced as Annexure-B. On perusal of the plaint, it reveals that the prayer sought for by the plaintiff is for declaration to declare that the judgment and decree in O.S.No.388./2010 dated 03.02.2013 is not binding on the plaintiff, more particularly southern schedule of defendant’s property. It is for the plaintiff to prove as to how the judgment and decree is not binding on her. Whether the suit schedule property involved in both the suits are one and the same or not is to be decided by the Court on the material to be placed on record in the trial. The defense of the defendant that suit is barred by principles of resjudicata cannot be gone into at this stage more particularly in the facts of the present case on the averments of the plaint.
8. A perusal of the plaint would reveal cause of action for filing the suit and nature of relief sought for by the plaintiff requires trial. To buttress the contention of the defendant, it is necessary to place on record the relevant material. Therefore, I find no error or perversity in the order passed by the trial Court. The trial Court has not committed any jurisdictional or material irregularity. Accordingly, the revision petition is dismissed.
Sd/- JUDGE mpk/-*CT-bms