Karnataka High Court
Tulasu Jattu Gouda vs Nagaraj S/O.Govind Naik on 27 September, 2013
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 27 T H SEPTEMBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE A.N.VENUGOPALA GOWDA
WRIT PETI TION NO.66643/2009 [GM-CPC]
BETWEEN:
1. TULASU JA TTU GOUDA
AGE:44 Y EARS,
R/O.GUNGUKERI, HONAVAR 581334
DIST U TTAR KANNADA.
2. NAGAMMA KOM MASTIGOUDA
AGE:45 Y EARS,
OCC H/W. R/O.SALIKERI HALADIPUR
TQ HONAVAR-581334,
DIST U TTAR KANNADA.
3. GIRIYAMMA D/O.GOVIND NAIK
AGE:33 Y EARS,
OCC H/W. R/O.VANDOOR
TQ HONAVAR-581334,
DIST U TTAR KANNADA.
... PETITIONERS
(BY SRI. SACHIN S MAGADUM, ADV.)
AND
1. NAGARAJ S/O.GOVIND NAIK
AGE: 35 YEARS ,
OCC BUSINESS ,
R/O.ROYALKKERITQ. HONAVAR-581334,
DIST U TTAR KANNADA.
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2. JATTU BEDU GOUDA
AGE: 56 YEARS ,
OCC AGRIL., R/O.GUNGUNKERI,
HONAVAR-581334,
DIST U TTAR KANNADA.
3. MASTI BEDU GOWDA
AGE: 49 YEARS ,
OCC AGRIL., R/O.GUNGUNKERI,
HONAVAR-581334,
DIST U TTAR KANNADA.
4. HAMUMATH S/O.BEDU GOUDA
AGE: 46 YEARS ,
OCC AGRIL R/O.GUNGUNKERI,
HONAVAR-581334,
DIST U TTAR KANNADA.
5. NAGAPPA BEDU GOUDA
AGE: 46 YEARS ,
OCC AGRIL R/O.GUNGUNKERI,
HONAVAR-581334,
DIST U TTAR KANNADA.
6. GOURI KOM MONNA KUSU GOUDA
AGE: 63 YEARS ,
OCC AGRIL R/O.GUNGUNKERI,
HONAVAR-581334,
DIST U TTAR KANNADA.
... RESPONDENTS
(BY M/S J S SHETTY ASSOCIA TES , ADVS . FOR R1,
SRI. RAJUBHA T, ADV. FOR R2-R6.)
THIS WRIT PETITION IS F ILED UNDER A RTICLES
226 & 227 OF THE CONS TITU TION OF IND IA PRAY ING
TO QUASH THE IMPUGNED ORDER DTD. 26/11/2009
PASSED ON PRELIM INARY ISSUE IN O.S .NO. 122/2008
ON THE F ILEK OF ADDL.CIVIL JUDGE(JR.DN)
HONAVAR VIDE ANNEXURE-D AND ACCORDINGLY
PERMIT TO MEET TH E ENDS OF JUS TICE AND EQUITY .
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THIS WRIT PETITION COMING ON FOR
PREL IM INARY HEAR ING IN 'B' GRO UP TH IS DAY, THE
COURT MADE THE FOLLOWING:
O R D E R
Defendants 6, 7 and 8 in O.S.No.122/2008, on the file of Civil Judge (Jr.Dn.), Honnavar, have filed this writ petition, questioning an order dated 26.11.2009 passed in the suit.
2. Respondent No.1 has instituted the said suit, to pass a decree declaring him as the owner of the plaint schedule property and consequently restrain defendants 6 to 8 and the persons claiming through them permanently from interfering with the possession, cultivation and enjoyment of the suit property, or in the alternative, to direct defendants 1 to 5 to pay sale consideration of Rs.75,000/- with interest at 10% p.a. from the date of suit till payment. Defendants 6, 7 and 8 have filed written statement, as at Annexure-B. Based on the :4: pleadings, issues have been raised. Defendants 6, 7 and 8 filed an I.A. under Order 14 Rule 2 CPC, to try issue No.3 as preliminary issue. Issue No.3 reads as follows:
"Whether the 6 t h defendant proves that the suit is barred by res-judicata?"
3. Said issue, without trial has been decided on 26.11.2009, holding that the suit as against 6th defendant is not barred by res- judicata. Assailing the said order, this writ petition has been filed.
4. Heard the learned counsel on both sides and perused the writ petition record.
5. There is procedural impropriety on the part of the trial Court in taking up issue No.3, as a preliminary issue for consideration and determination. The said issue requires trial. In the case of Alamengada Muddappa and others :5: vs. Alamengada Kuttappa and others, reported in ILR 2010 Karnataka 5179, it has been held as follows:
7. Indisputedly, trial was not held and evidence of the parties was not recorded even in respect of either of the said issues. By merely hearing the arguments, Learned Trial Judge has answered issue No.6. The Learned Trial Judge has held that, suit is hit by the principles of res-judicata. Regarding issue No.4, it has been held that, the same does not arise for consideration, in view of the finding on issue No.6. By making a reference to Rule 5 of Order 20, Learned Trial Judge has held that, in view of the answer to issue No.6, issue Nos.1 to 5 and 8 and 9 does not arise for consideration. The suit was dismissed as barred by "principles of res-judicata".
8. It is apparent from issue No.6(supra), that the same relates to "maintainability" and not on the :6: question of applicability of "principles of res-judicata". The Learned Trial Judge, if had considered that there is a plea of res-judicata raised in the written statement filed by the defendants, ought to have framed a distinct issue in that regard.
9. Sub-Rule (2) of Rule 2 of Order 14 lays down that, where issues both of law and of fact arise in the same suit and the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first, if that issue relates to; (a) jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force.
10. In this connection, it is appropriate to refer to the ratio of law laid down in the case of MAJOR S.C. KHANNA vs. BRIG. F.J.DILLON, wherein it has been held as follows:
"Under Order 14 Rule 2 where issues both of law and of fact arise in the same suit, and :7: the Court is of the opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jur isd iction to try issues of law ap ar t f rom the issues of f act may be exercised only where in the opinion of the Cour t the whole suit may be disposed of on the issues of law alone, but the Code conf ers no jur isd iction upon the Cour t to try a suit on mixed issues of law and f act as preliminary issues. Normally all the issues in a suit should be tr ied by the Cour t: not to do so, especially when the decision on issues even of law depends upon the decision of issue of f act, would result in a lop-sided tr ial of the suit."
(Emphasis supplied)
11. A perusal of the judgment passed by the Trial Court, impugned in the first appeal, does not indicate that copies of pleadings and issues framed in the earlier suit having been tendered in evidence. As already noticed, issue of res-judicata has not been distinctly :8: framed and tried between the parties. Since, res-judicata is a mixed question of fact and law, the same should be proved by producing the copies of pleadings and issues framed in the earlier suit, by the party, which has raised the plea. In the instant case, the defendants have not proved during the trial, by producing the evidence that principles of res-judicata in terms of Section 11 CPC are attracted to the suit. It is in this context, the Learned Appellate Judge has noticed that, the case of the plaintiffs is regarding the encroachment of land by the defendants and to get back the encroached extent, the suit for declaration of title and possession has been filed and hence, has recorded the finding that, principles of res-judicata cannot be made applicable to the case on hand and as a result, has passed the impugned order of remand of suit to the Trial Court. :9:
6. To decide issue No.3 there is a need for the parties to adduce evidence. Issue relating to attraction of Section 11 of CPC - res-judicata, involves determination of facts and law. Since issues cannot be tried in piece meal, the said issue could not have been treated as a preliminary issue and decided, without holding a trial. In the said view of the matter, impugned order being opposed to the decision noticed supra, cannot be sustained.
In the result, writ petition is allowed and the impugned order is quashed. Issue No.3 be tried along with other issues and the suit be decided expeditiously. Plaintiff shall adduce and complete his evidence within a period of two months from the next hearing date of the suit and the defendants shall adduce and complete their side of evidence within a period of two months from the date of the plaintiff closes his case. The suit be : 10 : decided within a period of two months from the date of trial is complete.
SD/-
JUDGE Ct: byg/-
Mrk/-