Karnataka High Court
Chikannamma Devi Temple Trust vs Sri. Lakshman Singh on 5 July, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 5TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
R.F.A.No.5 OF 2018 (RES)
BETWEEN:
1. CHIKANNAMMA DEVI TEMPLE TRUST
NO.13/1, CHICKANNAMMA GUDI BEEDI
BENGALURU - 560 002.
REP. BY SRI. K. RANGASWAMY
PRESIDENT.
2. SRI. K. RANGASWAMY
S/O SRI. KRISHNAPPA
AGED ABOUT 73 YEARS
GANIGARA 'A' STREET
SUNKALPET CROSS
BENGALURU - 560 002.
3. SRI. D.S. DEVARAJU
S/O SRI D.C. SHANKARANARAYANA
AGED ABOUT 65 YEARS
NO.210, CUBBONPET MAIN ROAD
BENGALURU - 560 002.
4. SRI. V. MUNINANJU
S/O VENKATARAMANAPPA
AGED ABOUT 70 YEARS
NO.11, 26TH CROSS, CUBBONPET
BENGALURU - 560 002.
5. SRI.B.S. BALACHANDRAN
S/O B.V. SUBBARAYAN
AGED ABOUT 50 YEARS
NO.238, MARKET ROAD
V.V.PURAM, BENGALURU - 560 004.
...APPELLANTS
(BY SRI. V.B.SHIVAKUMAR., ADVOCATE)
2
AND
SRI. LAKSHMAN SINGH
S/O MOHAN SINGH
SINCE DEAD BY LRS.,
1. SRI. KRISHNA SINGH
S/O LATE LAKSHMAN SINGH
MAJOR BY AGE.
2. SRI BALAJI SINGH
S/O LATE LAKSHMAN SINGH
MAJOR BY AGE.
3. SMT. MALADEVI
W/O LATE LAKSHMAN SINGH
MAJOR BY AGE.
ALL ARE RESIDING AT NO.2 AND 4
NOW BEARING 63/1, CHIKANNAMMA TEMPLE STREET
ULSOORPET
BENGALURU - 560 002.
...RESPONDENTS
(BY SRI. C.N. SATHYANARAYANA SHASTRY, ADV. FOR R-1 & R-2
SRI.B.V. MANJUNATHA, ADVOCATE FOR R-3)
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 25.11.2017 PASSED
ON PRELIMINARY ISSUE IN O.S.NO.8664/2010 ON THE FILE OF THE
XXXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
(CCH-36) AFFIRMATIVELY ANSWERING PRELIMINARY ISSUE NO.6
BY HOLDING THAT THE SUIT IS HIT BY PRINCIPLES OF RES-
JUDICATA IN VIEW OF THE FORMER SUIT.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
This appeal by the unsuccessful plaintiffs in O.S.No.8664/2010 is directed against the impugned judgment and decree dated 25.11.2017 passed by the XXXV Addl.City Civil and Sessions Judge, Bangalore, whereby the trial court answered preliminary issue No.6 relating to res judicata in the 'affirmative', thereby holding that the suit is barred by res judicata and consequently, dismissed the suit.
2. Heard learned counsel for the appellants and learned counsel for the respondents and perused the material on record.
3. The material on record indicates that the appellants - plaintiffs instituted the aforesaid suit for declaration, permanent injunction and other reliefs in respect of the suit schedule properties. Pursuant to the respondents - defendants filing their written statement, the trial court framed the following issues on 19.11.2013:-
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"(1) Does the plaintiffs prove that, plaint A schedule property is the absolute property of plaintiff No.1 Trust as contended in the plaint?
(2) Does the plaintiffs proves that, the plaintiff No.1 Trust is in possession of the plaint A schedule property as on the date of filing of the suit?
(3) Does the plaintiffs prove that, defendants are interfering in the possession of the plaint A schedule property as contended in the plaint?
(4) Does the plaintiffs prove that, defendants have no right to obstruct for performing the pooja in the open space of A schedule property by the devotees of plaintiff No.1 Trust?
(5) Does the defendants prove that, suit is bad for non-joinder of necessary parties?
(6) Does the defendants prove that, the present suit is hit by the principles of res judicata in view of the reasons stated in Para No.20 and 21 of the written statement?
(7) What order of decree?
Issue No.6 treated as preliminary issue".
4. As can be seen above, issue No.6 pertaining to the suit being hit by principles of res judicata was directed to be treated as a preliminary issue. Pursuant thereto, the trial court recorded the evidence of the parties and after hearing them, 5 proceeded to answer the aforesaid issue No.6 against the plaintiffs and dismissed the suit by passing the impugned judgment and decree which is assailed by the appellants in the present appeal.
5. I have given my anxious consideration to the rival submissions and perused the material on record.
6. The only point that arises for consideration in the present appeal is, in the facts and circumstances of the instant case, whether the trial court was justified in deciding / adjudicating upon the issue relating to res judicata as a preliminary issue and passing the impugned judgment and decree dismissing the suit as barred by res judicata?
7. The question as to whether res judicata can be adjudicated upon as a preliminary issue, if it involves disputed / mixed questions of law and fact is no longer res integra as held by the Apex Court and this Court in several judgments including the recent judgment of the Apex Court in the case of Sathyanath & Another vs. Sarojamani - Civil Appeal 6 No.3680/2022 dated 06.05.2022, wherein, it is clearly held that if the issue regarding res judicata involves disputed / mixed questions of fact and law based on rival contentions, pleadings and evidence, the said issue cannot be treated or adjudicated upon as a preliminary issue but has to be decided along with the other issues in the suit. In the instant case, a perusal of the pleadings and evidence adduced by both sides, will clearly indicate that there are several contentious issues as well as complicated, disputed and mixed questions of fact and law that arise for consideration between the parties on all issues including the issue regarding res judicata.
8. Under these circumstances, I am of the considered opinion that the trial court completely misdirected itself and committed a patent illegality and procedural impropriety in adjudicating upon the issue relating to res judicata as a preliminary issue and dismissing the suit by passing the impugned judgment and decree which is not only contrary to the well settled principles of law enunciated by the Apex Court 7 and this Court but also the material on record warranting interference in the present appeal.
9. Accordingly, I deem it just and appropriate to set aside the impugned order as well as the impugned judgment and decree and remit the matter back to the trial court for reconsideration afresh and to decide the suit by adjudicating upon all issues including the issue regarding res judicata in accordance with law.
10. In the result, I pass the following:
ORDER
(i) Appeal is hereby allowed.
(ii) The impugned judgment and decree dated 25.11.2017 passed in O.S.No.8664/2010 by the XXXV Addl.
City Civil & Sessions Judge, Bengaluru City, is hereby set aside.
(iii) Matter is remitted back to the trial Court for reconsideration afresh in accordance with law by directing the 8 trial Court to decide the suit by adjudicating upon all issues including the issue of res judicata.
(iv) Liberty is reserved in favour of the parties to adduce such further additional evidence in support of their respective claims.
(v) Having regard to the fact that the suit is of the year 2010, the trial Court is directed to dispose of the suit as expeditiously as possible and preferably within a period of six months from 25.07.2022.
(vi) Parties undertake to appear before the trial Court on 25.07.2022 without awaiting further notice from the trial Court.
(vii) All rival contentions are kept open and no opinion is expressed on the same.
Sd/-
JUDGE SV/SRL