Karnataka High Court
Sri Anand Surana vs Smt K Bhagyanmma on 9 June, 2023
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
R.F.A. No.745 OF 2013 (DEC/INJ)
BETWEEN
SRI ANAND SURANA
S/O SRI GHIVARCHAND SURANA
AGED ABOUT 41 YEARS
R/AT #45/3, FAIR FIELD LAYOUT
RACE COURSE ROAD
BANGALORE-560001
REPRESENTED BY HIS DULY
CONSTITUTED ATTORNEY
SRI HITESH V SHAH
S/O LATE SRI V H SHAH
AGED ABOUT 38 YEARS
R/A NO.382/35, 58TH CROSS
RAJAJINAGAR III BLOCK
NEAR JAIN TEMPLE
BANGALORE-560010
... APPELLANT
(BY SRI K SHRIHARI, ADVOCATE)
AND
1. SMT K BHAGYANMMA
W/O LATE SRI M KODANDARAM
AGED ABOUT 48 YEARS
R/A NO.734, NAGAVARA VILLAGE
2
ARABIC COLLEGE POST
BANGALORE-560045
2. SRI K BALAKRISHNA
S/O LATE SRI M KODANDARAM
AGED ABOUT 34 YEARS
R/A NO.734, NAGAVARA VILLAGE
ARABIC COLLEGE POST
BANGALORE-560045
3. SRI K MANJUNATH
S/O LATE SRI M KODANDARAM
AGED ABOUT 32 YEARS
R/A NO.734, NAGAVARA VILLAGE
ARABIC COLLEGE POST
BANGALORE-560045
4. SRI K RAGHUNATH
S/O LATE SRI M KODANDARAM
AGED ABOUT 30 YEARS
R/A NO.734, NAGAVARA VILLAGE
ARABIC COLLEGE POST
BANGALORE-560045
5. SRI M RAJAGOPAL
S/O LATE SRI PATEL MUNIVENKATAPPA
AGED ABOUT 56 YEARS
R/A PATEL MUNIVENKATAPPA LAYOUT
NAGAVARA VILLAGE,
ARABIC COLLEGE POST
BANGLORE-560045
6. SRI MUNISONNAPPA
S/O LATE SRI CHIKKA APPANNA
AGED ABOUT 58 YEARS
R/O MARUTHI NILAYA
PATEL MUNIVENKATAPPA LAYOUT
NAGAVARA COLLEGE,
ARABIC COLLEGE POST
BANGALORE-560045
3
7. SMT AMBUJA
W/O SRI G R SATISH
AGED ABOUT 40 YEARS
R/AT NO.16, GOPAL NILAYA
2ND MAIN ROAD, GORAGUNTEPALYA POST
BANGALORE-560022
8. SMT UMA
W/O SRI SRINIVAS
AGED ABOUT 59 YEARS
R/O NEHARU NAGAR
NEAR OLD POST OFFICE
YELAHANKA, BANGALORE-560064
9. SMT SUGUNAMMA
D/O LATE RAMAKKA
AGED ABOUT 54 YEARS
R/O PATEL MUNIVENKATAPPA LAYOUT
NAGAVARA VILLAGE,
ARABIC COLLEGE POST
BANGALORE-560045
10 . SRI JAGADISH
S/O LATE RAMAKKA
AGED ABOUT 52 YEARS
R/A MALLUR VILLAGE
SIDDLAGHATTA TALUK
CHIKKABALLAPURA DISTRICT
11 . SMT SUNITHA
D/O LATE RAMAKKA
W/O M RAJAGOPAL
AGED ABOUT 54 YEARS
R/O PATEL MUNIVENKATAPPA LAYOUT
NAGAVARA VILLAGE,
ARABIC COLLEGE POST
BANGALORE-560045
...RESPONDENTS
(BY MS. IRFANA NAZEER, ADVOCATE FOR R1,R2 AND R4
R3,R5,R6,R7 R8,R9,R10 & R11 SERVED AND UNREPRESENTED)
4
THIS RFA IS FILED U/SEC.96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 08.04.2013 PASSED IN
O.S.5316/2008 ON THE FILE OF THE XXXVII-ADDL. CITY CIVIL
AND SESSIONS JUDGE, BANGALORE, DECREEING THE SUIT
FOR DECLARATION AND PERMANENT INJUNCTION AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 24.03.2023, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, THIS DAY, POONACHA J., DELIVERED THE
FOLLOWING:
JUDGMENT
The above first appeal is filed under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') by Defendant No.5 challenging the judgment and decree dated 8.4.2013 passed in OS No.5316/2008 by the XXXVII Additional City Civil and Sessions Judge (CCH-
38), Bangalore City (hereinafter referred to as the 'Trial Court'), wherein the suit of the Plaintiffs filed for declaration and injunction has been decreed.
2. For the sake of convenience, the parties herein are referred as per their rank before the Trial Court.
3. It is the case of the Plaintiffs that the suit properties and other properties originally belonged to one 5 Sri V.Munivenkatappa who had four sons namely, Sri M.Narayana, M.Venktappa, M.Kondandarama and M.Rajaggopal. In a family partition, effected amongst the said Munivenkatappa and his four sons on 28.8.1979, the suit properties were allotted to the share of M.Kodandarama, consequent to which, M.Kodandarama was in separate possession and enjoyment of the suit properties and other properties that fell to his share during his life time. After his death, the Plaintiffs, who are his wife and children are in possession of the suit properties and katha and mutation have been transferred to the name of Plaintiff No.1.
3.1. It is the further case of the Plaintiffs that on 25.11.2001, Defendant Nos.3 and 4 tried to interfere with their peaceful possession and enjoyment of the suit property claiming to have purchased the same from Defendant Nos.1 and 2 who are said to be the General Power of Attorney (hereinafter referred to as the 'GPA') Holders of late Kodandarama. Hence the Plaintiffs filed a 6 suit in OS No.262/2002 for declaration and injunction against Defendant Nos.1 to 4. Subsequently, the said suit was dismissed as withdrawn on 4.10.2002.
3.2. That Defendant Nos.1 and 2 are claiming to be the GPA holders of late Kodandarama by virtue of a registered GPA dated 28.6.1997. That Kodandarama had no independent right, title or interest in the suit properties to execute the GPA in favour of Defendant Nos.1 and 2 since the suit properties were the ancestral properties and Plaintiff Nos.2 to 4 also have a share in the suit properties.
3.3. It is the further case of the Plaintiffs that Kodandarama died intestate on 11.3.1999 leaving behind the Plaintiffs as his only legal heirs to succeed to his estate. Defendant Nos.3 and 4 are claiming to have purchased the suit properties under registered Sale Deed dated 3.11.2001 executed by Defendant Nos.1 and 2 as GPA holders of late Kodandarama. That Kodandarama having died on 11.3.1999, the GPA executed by him cannot be acted upon after his death. Hence, Defendant 7 Nos.3 and 4 have not acquired any right, title or interest in the suit properties. That after the dismissal of OS No.262/2002 on 4.10.2022, Defendant Nos.3 and 4 have clandestinely sold the suit properties vide registered Sale Deed dated 11.12.2002 in favour of Defendant No.5 who got katha and mutation of the suit properties transferred to his name. That Defendant Nos.3 and 4 had no valid right, title or interest or possession of the suit properties and could not have transferred any good or valid title of the suit properties in favour of Defendant No.5 and the sale made in favour of Defendant No.5 is illegal and invalid in law.
3.4. It is the specific case of the Plaintiff that they are lawful owners in possession of the suit property by virtue of inheritance. Hence, the Plaintiffs filed the suit seeking for the following reliefs:
"(a) Declaring that the Plaintiffs are the absolute joint owners by inheritance and in lawful, peaceful, lawful, actual and exclusive possession and enjoyment of the schedule property.8
(b) Declaring that the Sale Deed, Dated:
03.11.2001 in No.11323/2001-02 executed by Defendants Nos.1 and 2 in favour of Defendants Nos.3 and 4 and the Sale Deed, dated: 11.12.2002 in No.19492/2002-03, executed by Defendants Nos.3 and 4 in favour of Defendant No.5 , both registered in the office of the Sub-Registrar, Bangalore North Taluk, as illegal and not binding on the Plaintiffs.
(c) Grant Permanent Injunction restraining the Defendants, their Agents, representatives, power of attorney holders, workers, henchmen, supporters and anybody acting on their behalf from trespassing interfering or encroaching upon the Schedule Properties or any portion thereof or otherwise disturbing the Plaintiffs' peaceful, lawful, physical, actual and exclusive possession and enjoyment of the schedule property.
(d) Grant Permanent injunction restraining the Defendants, their agents, representatives, Power of attorney holders and anybody acting on their behalf from alienating, transferring or encumbering the schedule properties or any portion thereof in any manner and in favour of anybody.
(e) Pass such other order or orders as this Hon'ble Court may deem fit to grant in the fact and circumstances of the case, including costs of this Suit."
4. Defendant Nos.1 to 4 have been placed ex parte before the Trial Court. Defendant No.5 (hereinafter referred to as the 'said Defendant') entered appearance in the suit and contested the case of the Plaintiffs by filing the written statement wherein he has denied the case of 9 the Plaintiffs in detail. However, the said Defendant admits the Partition Deed dated 28.8.1979 under which Kodandarama is allotted, inter alia, the suit properties. It is the specific case of the said Defendant that the registered GPA dated 28.6.1997 executed by Kodandarama in favour of Defendant Nos.1 and 2 is coupled with interest having regard to the fact that said Kodandarama had received entire sale consideration of `10 lakhs which is forthcoming from the Affidavit dated 3.7.1977 executed by him.
4.1. That after dismissal of OS No.262/2022 on 4.10.2002, the said Defendant purchased the suit properties for valuable consideration and is in actual possession and enjoyment of the suit properties as its absolute owner.
4.2. That the Plaintiffs filed OS No.262/2002 on 9.1.2002 and the pleadings of the said suit are similar to the pleadings of the present suit. On 3.10.2002 the Plaintiffs filed an application for advancement of the case 10 from 19.10.2002 to 4.10.2002 and consequent to the advancement, the Plaintiffs filed a Memo dated 4.10.2022 placing on record that the dispute between the parties had been settled out of Court and the Plaintiffs would not press the suit in OS.No.262/2002 and sought for permission to withdraw the suit. The Trial Court after taking the memo on record dismissed OS No.262/2002 as withdrawn. That by virtue of withdrawal of the suit, the validity of the Sale Deed dated 3.11.2001 is upheld and the same cannot be questioned by the Plaintiffs.
4.3. The said Defendant also contended that the suit is barred by limitation.
5. Based on the pleadings, the Trial Court framed seven issues and one additional issue. Plaintiff No.2 examined himself as PW.1 and marked Exs.P1 to P12. The GPA holder of Defendant No.5 examined himself as DW.1 and marked Exs.D1 to D6. The Trial Court, by judgment and decree dated 8.4.2013, decreed the suit of the Plaintiffs and passed the following order: 11
"ORDER The suit of the Plaintiffs against the Defendants with respect to the suit schedule properties is decreed with cost.
It is declared that, the Plaintiffs are the absolute owners in possession of the suit schedule properties.
It is declared that, the sale deed executed by Defendants No.1 and 2 in favour of Defendant Nos.3 and 4 on 3.11.2001 with respect to the suit schedule properties after the death of M.Kodandarama as his General Power of Attorney holder is declared as illegal and not binding on the Plaintiffs. Like so the sale deed executed by Defendants No.3 and 4 in favour of 5th Defendant with respect to the suit schedule properties on 11.12.2002 is declared as null and void and not binding on the Plaintiff.
The Defendants, their men, agents, servants etc., are permanently restrained from interfering in the Plaintiffs' peaceful possession over the suit schedule properties from making encroachment over any portion of the same and to alienate the same to anybody in any manner.
Draw decree accordingly."
6. Being aggrieved, the said Defendant has preferred the present first appeal.
7. Sri.K.Shrihari, learned Counsel for the Appellant contended:
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i) that having regard to the cause of action and the prayers made in the earlier suit OS No.262/2002 and the subsequent suit in OS.No.5316/2008, the subsequent suit is barred by res judicata;
ii) that the suit filed by the Plaintiffs is barred by time as the cause of action arose on 11.3.1999 and as per Article 58 of the Limitation Act, 1963, any legal proceedings ought to have been initiated within three years.
7.1. In support of his contentions, the learned Counsel relied upon the following judgments:
i) Bakhtawar Singh v. Sada Kaur1;
ii) Sarguja Transport Service v. S.T.A.T2;
iii) Swamy Atmananda & Ors., v. Sri
Ramakrishna Tapovanam3;
iv) S.N.Ramachandra v. State of Karnataka & Ors., 4;
1 (1996) 11 SCC 167 2 (1987) 1 SCC 5 3 2005 (3) KCCR 2137 4 AIR 1990 KANT 249 13
v) Vithalbhai (P) ltd., v. Union Bank of India5;
vi) Virgo Industries (Eng.) (P) Ltd. v. Venturetech Solutions (P) Ltd., 6
vii) Avinash Nagra v. Navodaya Vidyalaya Samiti 7;
viii) Nitin Gunwant Shah v. Indian Bank 8
8. Per contra, Ms.Irfana Nazeer, learned Counsel for Respondent Nos.1, 2 and 4 justifies the judgment and decree passed by the Trial Court and contended:
i) that the main question is whether the GPA dated 28.6.1997 is coupled with interest;
ii) that the Trial Court having framed issue No.7 and additional issue No.1 has rightly appreciated the relevant facts and has recorded finding which is not liable to be interfered with in the present appeal;5
(2005) 4 SCC 315 6 (2013) 1 SCC 625 7 (1997) 2 SCC 534 8 (2012) 8 SCC 305 14
iii) that the judgment and decree passed by the Trial Court is just and proper and not liable to be interfered with in the present appeal.
9. We have considered the submissions made by both the learned Counsel and perused the material available on record. The questions that arise for our consideration are:
i) Whether the suit filed by the Plaintiffs is barred by res judicata?
ii) Whether the judgment and decree passed by the Trial Court is liable to be interfered with?
Re. Question Nos.(i) and (ii):
10. The Trial Court, based on the pleadings of the parties, framed the following issues:
"1. Does the Plaintiffs prove that, they are the absolute owners in possession of the suit schedule properties as contended in the plaint?
2. Does the Plaintiffs prove that, the Defendants are interfering in their possession over the suit schedule properties?15
3. Does the Plaintiffs prove that, the sale deeds executed by Defendants No. 1 and 2 in favour of Defendants No.3 and 4 on 3.11.2001 and sale deed executed by Defendants No.3 and 4 in favour of Defendant No.5 on 11.12.2002 are null and void and not binding on the Plaintiffs for the reasons stated in the plaint?
4. Does the Plaintiffs prove that, issuing of permanent injunction against the Defendants restraining them from alienating the suit schedule properties to anybody in any manner as prayed in the plaint is necessary?
5. Does the Plaintiffs prove that suit is in time?
6. Does the Plaintiffs prove that, the suit is properly valued and Court Fee paid on the same is sufficient?
7. What order or decree?
Additional issue:
(1) Does the Defendant No.5 prove that, in view of the withdrawal of O.S.No.262/2002 the Plaintiffs have no right to proceed with the present suit as stated in para No.21 of the written statement?"
11. Issue No.7 and additional issue No.1 pertain to the aspect of the present suit being barred by time and res judicata. In order to appreciate the contention regarding bar of the subsequent suit, certain factual aspects are required to be noticed.
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12. OS No.262/2002 has been filed by the Plaintiffs against Defendant Nos.1 to 4. The case putforth by the Plaintiffs in the present suit and in the earlier suit is similar. The relevant averments made by the Plaintiffs in OS.No.262/2002 are extracted herein below for ready reference:
"17. The Plaintiffs submit that as they were not parties to the Sale Deed dated 03.11.2001 and as the said sale deed executed by Defendants 1 and 2 is without authority of law, the said sale deed executed by Defendants 1 and 2 in favour of Defendants 3 and 4 is not illegal and unauthorized but also not binding on the Plaintiffs.
19. The cause of action for the above suit arose on 25.11.2001 when the Defendants tried to encroach upon the portion of the suit schedule land and subsequently when the Plaintiffs came to know regarding the execution of the sale deed executed by Defendants 1 and 2 in favour of Defendants 3 and 4 and within the jurisdiction of this Hon'ble Court."
13. It is necessary to note that in IA dated 3.10.2002 filed in OS.No.262/2002 (certified copy of which is marked as Ex.D3), the Plaintiff No.2 has sworn to an affidavit that at the intervention of the relatives and friends the dispute between the Plaintiffs and Defendant 17 Nos.1 to 4 has been settled, that they have arrived at compromise and sought for advancement of the suit to file a compromise petition. The Memo dated 4.10.2002 (certified copy of which is marked as Ex.D2) which is signed by the Plaintiffs and the Advocate for the Plaintiffs reads as follows:
"MEMO The Plaintiff submit that as the dispute between the parties are settled outside the court, the Plaintiff do not press the above suit.
Wherefore, the Plaintiff submit that they may be permitted to withdraw the above suit, in the interest of justice.
Sd/- Sd/-
PA Holder of the plaintiffs Advocate for the Plaintiffs
14. Pursuant to the said Memo dated 4.10.2002 filed by the parties, OS No.262/2002 was dismissed as withdrawn vide order dated 4.10.2002 (certified copy of which is marked as Ex.D6).18
15. The relevant averments made in the present plaint i.e., OS No.5316/2008 are as follows:
"8. As stated above, Sri M Kodandarama died intestate on 11.03.1999 leaving behind the plaintiffs as his only legal heirs to succeed to his estate, the defendants Nos. 3 and 4 are claiming to have obtained registered Sale Deed on 03.11.2001 vide No. 11323/2001-02 from the defendants Nos. 1 and 2 representing as General Power of Attorney holders of Late Sri. M Kodandarama. A copy of the Registered Sale Deed is produced herewith as "DOCUMENT No. VIII". It is well settled law that the General Power of Attorney dies along with the executor. Sri. M Kodandarama died on 11.03.1999. The defendants Nos. 1 and 2 representing as General Power of Attorney Holders of Late M Kodandaram, have executed the registered sale deed of the Schedule properties on 03.11.2001 i.e., after lapse of about 33 months from the date of death of the executor of General Power of Attorney. As such the Sale Deed executed by the defendants Nos. 1 and 2 in favour of Defendants Nos. 3 and 4 in respect of the schedule properties is illegal, null and void and not valid in the eye of law. The defendants Nos. 1 and 2 had no right to act upon the defunct General Power of Attorney and to sell the schedule properties in favour of defendants Nos. 3 and 4. The defendants Nos. 3 and 4 had not acquired any valid right, title, interest much less possession over the schedule properties under the void Sale Deed, dated: 03.11.2001.
13. The cause of action for this suit arose on 11.03.1999 when sri M Kondandarama died intestate on 03.11.2001 when the defendants Nos. 1 and 2 representing as General Power of Attorney Holder of Late M Kodandarama illegally sold the schedule properties to the defendants 19 Nos.3 and 4 and on 11.12.2002 when the defendants Nos.3 and 4 illegally sold the schedule properties to the defendant No. 5 and from the past about 2 weeks since the defendnat No. 5 is making hectic attempts to trespass, interfere and disturb the possession of the plaintiff over the schedule properties and subsequently till date, within the jurisdiction of this Hon'ble Court. This suit filed today is in time."
16. In the reliefs as are extracted at para 3.3. herein above, prayer (b) is similar to prayer (i) sought in OS No.262/2002. The other prayers sought for in the present suit are consequential to payer (b). The earlier suit was filed on 9.1.2002 and the present suit is filed on 12.8.2008.
17. Having regard to the aforementioned factual aspects, it is necessary to notice the relevant statutory provisions and the legal position.
18. Section 11 of the CPC states as follows:-
"11. Res Judicata. -No Court shall try suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent 20 suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
18.1. Order II Rule 2 of the CPC states as follows:
"2. Suit to include the whole claim.
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted."
18.2. Order XXIII Rule 1 states as follows:
"1. Withdrawal of suit or abandonment of part of claim.
(1) At any time after, the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:
Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit 21 nor any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.
(3) Where the Court is satisfied,-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
(4) Where the plaintiff-
(a) abandons any suit or part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), 22 or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs."
19. Sub rule (1) of Order XXIII Rule 1 states that the Plaintiff may any time after institution of the suit abandon his suit. It is clear from the manner in which the earlier suit i.e., OS.No.262/2002 was withdrawn that the Plaintiffs opted to abandon the suit against Defendant Nos.1 to 4. The suit has been dismissed and no liberty to institute a fresh suit as contemplated under sub-rule (3) of Order XXIII Rule 1 of the CPC has been granted. Having regard to the same and having regard to the clear wording of Section 11 of the CPC, the issue in the earlier suit being directly and substantially in issue in the subsequent suit, the subsequent suit is barred by res judicata.
20. The judgments relied upon by the learned Counsel for the Appellant/Defendant No.5 are as under:
20.1. In the case of Bakhtawar Singh1 the Hon'ble Supreme Court has held as follows:23
"8. The contention of the learned counsel for the appellants is that since the plaintiffs had withdrawn their earlier suit (Civil Suit No. 661 of 1964) with permission to file a fresh suit on the same cause of action in accordance with the provisions contained in clause (3) of Rule 1 of Order 23 of the Code of Civil Procedure (hereinafter 'the Code') and, therefore, the plaintiffs were entitled to exclude the time spent in prosecuting the said earlier suit as provided under Section 14 of the Limitation Act, 1963 (hereinafter 'the Act'). The question, therefore, that arises for our consideration is whether the plaintiffs-appellants were permitted to withdraw the suit in accordance with the provisions contained in clause (3) of Order 23 Rule 1 of the Code and whether in the facts and circumstances of the present case the plaintiffs- appellants are entitled for exclusion of the time under Section 14 of the Act. Clause (3) of Order 23 Rule 1 of the Code contemplates that where the court is satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of the suit or part of a claim, it may on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of subject-matter of such suit or such part of the claim. In the present case all the courts below including the High Court concurrently found that the plaintiffs/appellants failed to produce any evidence to show that the permission to withdraw the suit was given on the ground that the suit was bound to fail by reason of some formal defect or there were sufficient grounds for allowing the plaintiffs to institute a fresh suit in respect of the same subject-matter. Not only this, the plaintiffs had not even produced the application which is said to have been filed for withdrawal of the earlier suit with permission to file a fresh suit on the same cause of action to show as to what was the formal defect in the earlier suit by reason of which it was sought to be withdrawn. However, the order dated 20-5-1971 passed by the civil court was on record which did not 24 indicate as to what was the formal defect in the suit by reason of which the permission to withdraw the same was accorded. In these facts and circumstances no case for fresh institution of suit on the same cause of action and for the same relief after the withdrawal of the earlier suit was made out by the plaintiffs/appellants in accordance with the provisions of clause (3) of Order 23 Rule 1 of the Code."
(emphasis supplied) 20.2. In the case of Sarguja Transport Service2, the Hon'ble Supreme Court held that the principle underlying Order XXIII Rule 1 of the CPC is applicable in respect of Writ Petitions under Article 226 also.
20.3. In the case of Swamy Atmananda3 the Hon'ble Supreme Court considering Order II Rule 2 of the CPC and Section 11 of the CPC has held as follows:
"22. A cause of action, thus, means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued 25 on but includes all the material facts on which it is founded.
24. The object and purport of principle of res judicata as contended in Section 11 of the Code of Civil Procedure is to uphold the rule of conclusiveness of judgment, as to the points decided earlier of fact, or of law, or of fact and law, in every subsequent suit between the same parties. Once the matter which was the subject-matter of lis stood determined by a competent court, no party thereafter can be permitted to reopen it in a subsequent litigation. Such a rule was brought into the statute book with a view to bring the litigation to an end so that the other side may not be put to harassment.
25. The principle of res judicata envisages that a judgment of court of concurrent jurisdiction directly upon the point would create a bar as regard a plea between the same parties upon some other matter directly in question in another court and that the judgment of the court of exclusive jurisdiction direct in point.
26. The doctrine of res judicata is conceived not only in larger public interest which requires that all litigation must, sooner than later, come to an end but is also founded on equity, justice and good conscience."
(emphasis supplied) 20.4. In the case of S.N.Ramachandra4 a Division Bench of this Court considering Order II Rule 2 of the CPC held that although the subsequent suit was with respect to extra work done and since the extra work is 26 done pursuant to a contract which was the subject matter of an earlier suit, this Court upheld the judgment of the Trial Court holding that two separate suits cannot be maintained.
20.5. The case of Vittalbhai (P) Ltd.,5 is with regard to Order VII Rule 11 of the CPC and the same is not being considered since in the present appeal the judgment and decree passed by the Trial Court after a full fledged trial is under consideration.
20.6. In the case of Virgo Industries (Eng) Private Limited6 the Hon'ble Supreme Court has held as under:
"11. The cardinal requirement for application of the provisions contained in Order 2 Rules 2(2) and (3), therefore, is that the cause of action in the later suit must be the same as in the first suit. ...........
12. In the instant case though leave to sue for the relief of specific performance at a later stage was claimed by the plaintiff in CSs Nos. 831 and 833 of 2005, admittedly, no such leave was granted by the Court. The question, therefore, that the Court will have to address, in the present case, is whether the cause of action for the first and second set of suits 27 is one and the same. Depending on such answer as the Court may offer the rights of the parties will follow."
(emphasis supplied) 20.7. In the case of Avinash Nagra7 the Hon'ble Supreme Court was considering a case where a second Writ Petition was filed after withdrawal of the earlier Writ Petition without permission of the Court seeking liberty to file the second Writ Petition and it was held that the second Writ Petition is not maintainable on the principles of constructive res judicata.
20.8. In the case of Nitin Gunwant Shah8 the Hon'ble Supreme Court was considering a case where the earlier suit was dismissed for default and the Hon'ble Supreme Court held that the subsequent suit is barred under Order XXIII Rule 1(4) of the CPC.
21. It is clear from the aforementioned factual situation and the position of law, that the factual matrix of the earlier suit was the right asserted by the Plaintiffs vis- à-vis the suit properties and the contention that the 28 registered GPA dated 28.6.1997 will not bind the Plaintiffs as also the Sale Deed dated 3.11.2001 having been executed after the death of Kodandarama, the said Sale Deed is void and illegal in law. The said suit has been dismissed as withdrawn consequent to the settlement arrived at between the parties. It is clear from the averments of the subsequent suit that it is founded on the same set of facts and the basis of claim for the Plaintiffs is the same. Nodoubt, in the reliefs sought for in the subsequent suit, declaration that the Sale Deed 11.12.2002 executed by Defendant Nos.3 and 4 in favour of Defendant No.5 is not binding on the Plaintiffs is also sought. The said Sale Deed is executed after the withdrawal of the earlier suit. Hence, basis for the reliefs of both the suits being the same, the suit filed by the Plaintiffs is clearly barred by Order II Rule 2 and Order XXIII Rule 1 of the CPC.
29
22. The Trial Court while considering issue No.7 regarding limitation and additional issue No.1 has recorded the following findings:
"34. Here by looking into the relief sought in the earlier suit and the present suit it indicates that, both are not one and the same. Because in the earlier suit the plaintiffs have not sought for declaration of their title to the suit schedule properties. Here in this case on account of the illegal sale of the suit schedule properties by defendants No. 3 and 4 in favour of defendant No. 5 they constrained to file this suit against all the defendants for seeking the relief of declaration with respect to the sale deeds of defendants No.3 to 5. By looking into the order sheet of OS No. 262/2002 marked at Ex. D6 it indicates that, the plaintiffs got that suit dismissed on 04.10.2002. By looking into the sale deed marked at ex. P11, the defendants No. 3 and 4 have executed a registered sale deed in favour of 5th defendant on 11.12.2002 i.e., within 2 ½ months from the date of dismissal of that suit. If the negotiations between defendants No. 1 and 2 with M Kodandarama was absolute sale then they have to got execute registered sale deed instead of General power of Attorney. Further if the sale negotiations between defendants No. 3 and 4 with respect to defendants No. 1 and 2 was valid, there was no necessity for them to alienate the suit schedule properties within 2 ½ months from the date of dismissal of the plaintiff's earlier suit. By looking into the conduct of the parties before the Court it indicates that, defendants No. 1 to 4 are having hands in glow with defendants No. 5. Because if the transactions between defendants No. 1 and 2 with deceased M Kodandarama was valid, definitely the defendants No. 1 and 2 use to question the plaintiffs about their rights. Because defendant No.1 is none else than the uncle of 30 plaintiffs No. 2 to 4. As he is the close relative of plaintiffs, he is the competent person to appear before the Court to state about the transaction taken place between him and his brother M Kodandarama and about the settlement arrived between the plaintiff and defendants No. 1 to 4 during the pendency of O S No. 262/2002. But defendants No.1 to 4 have not appeared before the Court for giving their evidence in support of the case of 5th defendant. By considering their behaviour it suspects about the valid transaction between the defendants No. 1 to 5 with respect to the suit schedule properties.
37. When this Court held that, the sale deed executed by defendants No. 1 and 2 in favour of defendants No. 3 and 4 with respect of the suit schedule properties is void, then the question of considering the submissions of the defendants Counsel for attracting the provisions of Order II Rule 2, Order 23 Rule 1 (3) of CPC and the provisions of Limitation Act does not arise. Because in the Written Statement, the 5th defendant has not taken the defence of adverse possession with respect to the suit schedule property against the plaintiffs. By considering the reasons stated above this Court held that, the decision relied upon by the Counsel for defendant No. 5 are not helpful to his case. Inview of all these reasons this Court answered Issue No. 5 in the Affirmative and Additional Issue No. 1 in the Negative."
(emphasis supplied)
23. The finding recorded by the Trial Court is ex facie erroneous, in as much as the basis of the claim of the earlier suit and the subsequent to being the same i.e., the right of the Plaintiffs in the suit properties by virtue of the 31 same being ancestral properties since the same is allotted to Kodandarama by virtue of Partition Deed dated 28.8.1979 and that Kodandarama did not have an absolute right to alienate the same, hence the contention of the Plaintiffs that they are not bound by the registered GPA dated 28.6.1997 and the alienation made by Defendant Nos.1 and 2 in favour of Defendant Nos.3 and 4. The said basis of the claim of the Plaintiffs, have been pleaded in the earlier suit as well as in the present suit. The earlier suit having been withdrawn, the subsequent suit is clearly barred.
24. In view of the aforementioned, the finding recorded by the Trial Court is erroneous and liable to be interfered with. The questions framed for consideration are answered in the affirmative.
25. Accordingly, we pass the following:
ORDER i. The above appeal is allowed;32
ii. The judgment and decree dated 8.4.2013 passed in OS No.5316/2008 by the XXXVII Additional City Civil and Sessions Judge (CCH-38), Bangalore City, is set aside;
iii. The suit in OS No.5316/2008 on the file of the XXXVII Additional City Civil and Sessions Judge (CCH-38), Bangalore City, is dismissed.
No costs.
IA.I/2016 is filed by the Appellant under Order XLI Rule 27 of the CPC to produce 3 documents. Since the said documents sought to be produced along with the said application have been marked as Exhibits before the Trial Court and the above appeal having been decided on merits, the said application is dismissed as unnecessary.
IA.I/2019 is filed by the Appellant Order XLI Rule 27 r/w Section 151 of the CPC to produce the affidavit dated 3.7.1997 and IA.I/2022 is filed by the Appellant filed under 33 Order VII Rule 11 r/w Section 151 of the CPC for rejection of the plaint.
Since the above appeal has been decided on its merits, the said applications are dismissed as unnecessary.
Sd/-
JUDGE Sd/-
JUDGE nd