Karnataka High Court
Ms Elsy D Souza vs Mrs Precilla R D Souza on 25 January, 2018
Author: B.Veerappa
Bench: B.Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
WRIT PETITION NO.16078 OF 2017(GM-CPC)
AND
WRIT PETITION NO.31868 OF 2017
BETWEEN:
MS.ELSY D'SOUZA
AGED ABOUT 39 YEARS
D/O LATE HILLARY D'SOUZA
RAIKATTE HOUSE,
PADUKODI VILLAGE, KULUR P.O.
MANGALORE - 575 013. ... PETITIONER
(BY SRI CYRIL PRASAD PAIS, ADV.)
AND:
MRS.PRECILLA R. D'SOUZA
AGED ABOUT 42 YEARS
W/O MR.ROYCE CHARLES D'SOUZA
R/AT BIKARNAKATTE,
KANDITTU, KULSHEKAR P.O.
MANGALORE TALUK - 575 005 ... RESPONDENT
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDERS DATED 06.11.2015 AND
13.01.2017 PASSED BY THE II ADDITIONAL CIVIL JUDGE AND
JMFC, MANGALORE, DAKSHINA KANNADA ON I.A.NO.11 FILED
BY THE PETITIONER UNDER ORDER XIV RULES 1, 2 AND 5
READ WITH SECTION 151 OF THE CPC AND UNDER ORDER XIV
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RULE 5 READ WITH SECTION 151 OF THE CPC, IN O.S.
NO.686/2012 WHICH ARE AT ANNEXURE-A AND
CONSEQUENTLY ALLOW THE APPLICATIONS FILED BY THE
PETITIONER ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
These two writ petitions are filed by the defendant in O.S. No.686/2012, against the Orders dated 06.11.2015 and 13.01.2017, rejecting the two applications namely, I.A.11 filed under Order XIV Rules 1, 2 and 5 read with Section 151 of Civil Procedure Code, 1908 and another application I.A.11 filed under Order XIV Rule 5 read with Section 151 of Civil Procedure Code, seeking to frame additional issues.
2. The respondent is the plaintiff before the II Addl. Civil Judge, Mangalore, in O.S. No.686/2012 filed for permanent prohibitory injunction restraining the defendant or anybody claiming through her from trespassing or interfering with the peaceful possession and enjoyment of 3 the plaint schedule property by the plaintiff. Plaintiff has also sought a mandatory injunction directing the defendant to remove and dismantle the laterite wall built west to east within the plaint schedule property and restore the status- quo-ante and on her failure to do so, to get the same done through the process of Court. The plaintiff contends that she is the owner and in possession and enjoyment of the suit property more fully described in the plaint schedule and the same was acquired by her under a registered Settlement Deed dated 07.04.2004 and that the defendant has no right, title or interest in respect of the said property. In the suit, the plaintiff contended that after filing of the suit and passing of the injunction order, the defendant on 11.11.2013, trespassed into the plaint schedule property, has cut and removed mango, coconut and wild trees and built a laterite compound wall within the plaint schedule property. The defendant filed written statement and denied the plaint averments and contended that the plaintiff is not entitled to any mandatory 4 injunction as the plaintiff had no title to the property and denied the execution of settlement deed. The defendant filed additional written statement to the amended plaint as well and contended that the suit is not properly valued as per the Karnataka Court Fees and suits Valuation Act, 1958 and sought for dismissal of the suit.
3. On the basis of the pleadings of the parties, the Trial Court framed three issues which read as under:
" 1. Whether the plaintiff proves that, plaintiff is in possession over the suit schedule property?
2. Whether the plaintiff proves that the alleged interference over the suit schedule property?
3. Whether the plaintiff is entitled for the relief as prayed in the plaint?
4. What order or decree? "
4. Thereafter the petitioner / defendant filed an application on 24.08.2015 under Order XIV Rules 1, 2 and 5 5 read with Section 151 Civil Procedure Code to frame the following proposed additional issues:
"1. Whether the plaintiff proves that plaintiff is the absolute owner of the plaint schedule property?
2. Whether the plaintiff proves that there is settlement deed dated 2.4.2004 is valid?
3. Whether the defendant proves that order of the Land Tribunal dated 23.9.1981 ensures to the benefit of all the legal heirs of Hilary Paul D'Souza?
4. Whether the suit is barred by limitation?
5. Whether the plaintiff proves that subsequent to filing of the suit defendant has formed 16 feet road way?
6. Whether the plaintiff is entitled for mandatory injunction?
7. Whether the frame of the suit is bad?
8. Whether court fee paid is sufficient?
9. Whether this Honourable Court has jurisdiction in the matter? "
5. The said application was opposed by the plaintiff by filing objections. The Trial Court considering 6 the application and the objections, by an order dated 06.11.2015, rejected the said application. The said order was not challenged at the relevant point of time. Thereafter the petitioner filed second application under Order XIV Rule 5 read with Section 151 of Civil Procedure Code on 28.11.2016 along with a memorandum of facts, to frame the following additional issues:
"1. Whether the plaintiff proves that she is the absolute owner of the plaint schedule property?
2. Whether the plaintiff proves that after the institution of the suit, 16 feet roadway was formed by the defendant?
3. Whether the plaintiff proves that this court has pecuniary jurisdiction to decide the suit?
4. Whether suit is barred by Law of limitation?
5. Whether the description of the suit is proper?
6. Whether the plaintiff proves the cause of action?
7. Whether the plaintiff is entitled to mandatory injunction?
8. Whether suit is barred by the principles of delay, latches and acquiescence?"7
6. The said application was also opposed by the plaintiff by filing objections. The Trial Court by the impugned order dated 13.01.2017 rejected the application on the ground that as a similar application already filed was disposed of on 06.11.2015, the second application is not maintainable. Hence, the present writ petitions are filed by the defendant.
7. I have heard learned counsel for the petitioner.
8. Sri Cyril Prasad Pais, learned counsel vehemently contended that the impugned orders passed by the Trial Court rejecting the applications filed under Order XIV Rule 5 of Civil Procedure Code are erroneous and contrary to the material on record. He further contended that the plaintiff filed the suit for mandatory injunction and the defendant denied his title. Therefore an issue with regard to title is necessary which was not framed. He further contended that when encroachment and other things are denied, a proper issue has to be 8 raised. Therefore the Trial Court ought to have allowed the application filed by the defendant to frame additional issues. The Trial Court has not considered the applications in the proper perspective. Therefore, he sought to allow the writ petitions and quash the impugned orders of the Trial Court.
9. Having heard the learned counsel for petitioner, it is not in dispute that the plaintiff filed suit for permanent and mandatory injunctions raising various contentions that she is the owner of the property and defendant has no right, title or interest to interfere and put up a laterite wall etc. The same was disputed by the defendant by filing written statement. It was specifically contended that the suit filed by the plaintiff is not maintainable as the same is filed in respect of unascertained property and the same is barred by limitation. The plaintiff has not proved her title etc. and sought for dismissal of the suit.
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10. The Trial Court, considering the first application filed under Order XIV Rules 1, 2 and 5 read with Section 151 Civil Procedure Code, by Order dated 06.11.2015 rejected the application mainly on the ground that in an injunction suit, consideration is limited to whether the plaintiff is in possession of the property and if there is any interference, relief could be granted and framing of issues does not arise. The Trial Court recorded a finding that the additional issues sought to be framed are not at all relevant to decide the real controversy between the parties. The defendant has challenged the settlement deed and also claimed that she is one of the co-owners of the suit property. But the defendant has no locus-standi to challenge the settlement deed as she has not executed the same in favour of the plaintiff and the defendant has not sought any counter claim, either. The issues already framed are sufficient to resolve the dispute between the parties. The Trial Court held that the additional issues sought to framed are not necessary and accordingly 10 rejected the application. Though the said order was passed on 06.11.2015, defendant has not challenged the same. Instead, she has filed another application on 28.11.2016 to frame the same issues which were sought in the previous application. The Trial Court rejected the said application on the ground that it is barred by res-judicata.
11. A plain reading of Section 11 of Civil Procedure Code makes it clear that no Court shall try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties or between the parties under whom they claim litigating under the same title. If an issue has been decided at an earlier stage against the party, it cannot be allowed to be re-agitated by him in a subsequent proceedings.
12. The principle of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also found on equity, justice and good conscience which 11 requires that a party which has once succeeded on an issue should not be permitted to be harassed by multiplicity of proceedings involving determination of the same issue.
13. The Hon'ble Supreme Court considering the provisions of Sections 11 and 15 of the Indian Evidence Act in the case of BHANU KUMAR JAIN Vs. ARCHANA KUMAR reported in AIR 2005 SC 626, has held as under:
"30. Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine of issue estoppel is invoked against a party. If such an issue is decided against him, he would be estopped from raising the same in the later proceeding. The doctrine of res judicata creates a different kind of estoppel viz., estoppel by accord."
14. This Court while considering the provisions of Section 11 of the Code of Civil Procedure, in the case of DATTATRAYA Vs. SRINIVASA BHAT THAMMANNA reported in ILR 1985 KAR 1946, held as under:
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"7. The view taken by the learned District Judge, in my opinion, is erroneous and cannot be sustained. It is now well settled that interlocutory applications in a suit cannot themselves be regarded as suits but for the purpose of Section 11 of the C.P.C. a finding thereon which has become final at an earlier stage of the proceeding would become res- judicata and cannot be re-agitated at a subsequent stage of the same proceedings. This is a general principle of res-judicata which is applicable not only to the cases coming within the purview of Section 11 of the C.P.C. but also to eviction proceedings contemplated under Section 45 of the Act. In the circumstances, the order of the Learned District Judge cannot be sustained."
15. Ultimately, the defendant having denied the title of the plaintiff, it is for the plaintiff to prove that she is the owner and in possession of the suit property and defendant has encroached the said property. Therefore the issues framed by the Court originally, would suffice to resolve the issue between the parties. The challenge to the first order dated 24.08.2015 on the application I.A.11, after lapse of more than one year is only an after-thought. 13 When the issue with regard to framing of additional issue/s as sought under Order XIV Rules 1, 2 and 5 was already decided by the Court on 06.11.2015, again, a similar application filed on 28.11.2016, amounts to res-judicata in view of the provisions of Section 11 of Civil Procedure Code and therefore was not at all entertainable.
16. In view of the aforesaid reasons, the contention of the learned counsel for the petitioner that the order passed by the Trial Court on 13.01.2017 on I.A.11 rejecting the application filed under Order XIV Rule 5 is contrary to material on record as the same does not attract the provisions of Section 11 of Civil Procedure Code since the earlier application I.A.11 filed under Order XIV Rules 1, 2 and 5 was decided on 06.11.2015 by the Trial Court, cannot be accepted. Even an issue decided on I.A. cannot be re-agitated by filing an application at a later stage in the same proceedings which amounts to res- judicata.
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17. For the reasons stated above, the impugned orders passed by the Trial Court rejecting both the applications cannot be found fault with as the same are in accordance with law. Petitioner has not made out any ground to interfere with the said orders passed by the Trial Court.
In the result, the writ petitions are dismissed by imposing cost of `5,000/- payable to the plaintiff on the next date of hearing before the Trial Court.
Sd/-
JUDGE sac*