Kerala High Court
Nandakumaran Kartha vs Manian on 20 February, 2020
Author: P.Somarajan
Bench: P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 20TH DAY OF FEBRUARY 2020 / 1ST PHALGUNA, 1941
RSA.No.522 OF 2009
AGAINST THE JUDGMENT AND DECREE DATED 30-08-2008 IN AS 132/2007 OF
SUB COURT, PERUMBAVOOR
AGAINST THE JUDGMENT AND DECREE DATED 30-03-2007 IN OS 163/2001 OF
MUNSIFF COURT, PERUMBAVOOR
APPELLANT/(APPELLANT/PLAINTIFF:
NANDAKUMARAN KARTHA, S/O VASUDEVA PANICKER,
KUMMANOTTU MADATHIL, KUMMANODU KARA,
PATTIMATTOM VILLAGE.
BY ADV. SRI.DINESH R.SHENOY
RESPONDENTS/(RESPONDENTS/DEFENDANTS):
1 MANIAN, S/O VELAYUDHAN KUNJU,
KUMMANOTTU MADOM, KUMMANODU KARA,
PATTIMATTOM VILLAGE.
2 JAYAN, S/O.VELAYUDHAN KUNJU,
-DO-, -DO-.
3 OMANAKUNJAMMA, -DO- -DO-.
R1 BY ADV. SRI.P.VISWANATHAN
ADV.SRI.AJITH VISWANATHAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
20.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA.No.522 OF 2009 2
CR
JUDGMENT
Whether a dismissal of a suit on the ground of non- establishment of identity of property in an earlier suit would constitute res judicata as embodied under Section 11 C.P.C. in maintaining a second suit and what would be the legal position, if it is pertaining to dismissal of a counter claim are the questions came up for consideration.
2. It is an appeal by the plaintiff against the dismissal of suit for injunction simplicitor by both the courts below. The counter claim was also dismissed by both the courts below, against which no second appeal was preferred.
3. Plaint A schedule is the registered holding of the plaintiff. B schedule forms part of A schedule. The suit was filed for prohibitory injunction not to commit trespass. Counter claim was raised claiming B schedule property for removing the obstruction and for prohibitory injunction from obstructing its user. Both RSA.No.522 OF 2009 3 the suit and the counter claim were dismissed on the ground of non-establishment of identity of respective properties.
4. A pathway was provided in Ext.B1 partition of the year 1950. The dispute is with respect to right over the above said pathway. It was submitted that the dismissal of counter claim pertaining to the way in dispute ( B schedule) had attained finality and conclusiveness. By virtue of operation of Section 11 C.P.C. and the doctrine of res judicata embodied therein, the defendant is estopped from challenging the claim of plaintiff over B schedule. It was contended that the counter claim should be treated as a separate suit for all purposes and when counter claim attained finality by its dismissal, the same cannot be reopened for the purpose of adjudicating the claim of plaintiff over the same property. Further, the right of defence available to the defendant will stand merged in the decree dismissing the counter claim and he cannot reopen the same so as to defend the claim of plaintiff.
5. There may not be any quarrel to the legal proposition that the counter claim should be treated as RSA.No.522 OF 2009 4 a separate suit for all purposes and when the counter claim attained finality and conclusiveness, the same will stand with all consequences of a separate suit and decree thereof.
6. Section 11 C.P.C. would come into play only when there is a finding and adjudication on a matter directly and substantially in issue in a former suit between the same parties or by any one litigating under them by a competent court. By virtue of Explanation
(iv) to Section 11 C.P.C., a matter which might or ought to have been made a ground of attack or defence in a former suit deemed to be a matter directly and substantially in issue in such suit, besides the impact of Explanation (v) to Section 11 C.P.C. A dismissal of the suit due to defect in the framing of the suit, defect in the conduct of the suit, failure to address a defect or lack of territorial or pecuniary jurisdiction cannot be brought under the purview of Section 11 of C.P.C. and the doctrine of 'res judicata' as embodied under Section 11 of C.P.C. would not come into play. The non-identification of a property by employing a surveyor or wrong RSA.No.522 OF 2009 5 identification of property by the surveyor employed would not fall within the mischief of Section 11 of C.P.C.. The dismissal of the suit on that ground will not constitute any adjudication on any matter directly and substantially in issue in that suit and as such the same will not attract the mischief under Section 11 of C.P.C. But the legal position would be different when there is dispute regarding the identity of the property and the same was adjudicated by a competent court. It would fall within the mischief of Section 11 of C.P.C. as the adjudication rendered on the question of identity of property would be a matter directly and substantially in issue in that suit.
7. In the instant case, the counter claim was dismissed on the defect that the identity of the property was not proved. As such, it will not attract Section 11 C.P.C. Both the counter claim and the suit were dismissed on the ground that the identity of the respective properties was not established. It is not proper to dismiss a suit especially in the first appellate stage on that ground without affording an opportunity to the parties to issue a survey commission RSA.No.522 OF 2009 6 to measure out and locate their respective properties covered by the documents of title. Hence a remand of the matter to the trial court cannot be avoided.
The appeal is allowed in part. The decree and judgment of both the courts below are set aside. The matter is remanded back to the trial court for fresh disposal. The parties shall appear before the trial court on 20.03.2020. No costs.
Sd/-
P.SOMARAJAN JUDGE SV