Karnataka High Court
S M Narayan Reddy vs Sri Keshavachari on 13 February, 2020
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
REGULAR SECOND APPEAL NO. 2799 OF 2006 (DEC/INJ)
BETWEEN:
S. M. NARAYAN REDDY
SON OF S.V.MOTAPPA
AGED ABOUT 55 YEARS
RESIDING AT KALENAHALLI
KODIGENAHALLI HOBLI
MADHUGIRI TALUK
TUMKUR DISTRICT - 572 132.
... APPELLANT
(BY SRI. SADASHIVAIAH K. G., ADVOCATE)
AND:
SRI KESHAVACHARI
SON OF RANGACHARI
SINCE DEAD BY HIS LRS.
1. SMT.SAROJAMMA
WIFE OF LATE KESHAVACHARI
AGED ABOUT 45 YEARS.
2. SRI RAGHAVACHARI
SON OF LATE KESHAVACHARI
AGED ABOUT 26 YEARS.
3. SRI PARIPOORNACHARI
SON OF LATE KESHAVACHARI
AGED ABOUT 24 YEARS.
4. SRI PRAKRUTACHARI
SON OF LATE KESHAVACHARI
-2-
AGED ABOUT 22 YEARS.
5. VEGANANDACHARI
SON OF LATE KESHAVACHARI
AGED ABOUT 21 YEARS.
ALL ARE RESIDING AT KODEGENAHALLI
MADHUGIRI TALUK
TUMKUR DISTRICT - 572 132.
... RESPONDENTS
(BY SRI.A. SAMPATH., ADVOCATE FOR RESPONDENTS)
THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100
OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
29.06.2006 PASSED IN RA.NO. 34/1995 ON THE FILE OF THE CIVIL
JUDGE (SR.DN), MADHUGIRI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 14.02.1995
PASSED IN OS.NO. 225/1984 ON THE FILE OF THE PRL.MUNISIFF,
MADHUGIRI.
THIS REGULAR SECOND APPEAL COMING ON FOR HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the plaintiff in O.S.No.225/1984 on the file of the Court of the Principal Munsiff, Madhugiri (for short, the 'Civil Court') calling in question the judgment and decree dated 14.2.1995 therein and the judgment and decree dated 29.6.2006 in RA No.34/1995 on the file of the Civil Judge (Senior Division), Madhugiri (for short, "the appellate Court"). -3-
2. The relevant facts stated in brief are as follows. Sri.Alam Khan is the undisputed owner of the residential property bearing khaneshumari No.386 situated at Kodigenahalli, Madhugiri Taluk (the suit schedule property'). Sri Alam Khan has executed sale agreements in favour of the appellant as well as the respondent/defendant agreeing to sell the suit schedule property. The sale agreement in favour of the appellant is dated 25.1.1973 and the sale agreement in favour of the respondent/defendant is dated 18.2.1973. The respondent/defendant has filed the suit in O.S.No.133/1973 for specific performance of his agreement dated 18.2.1973. The appellant is not a party to this suit for specific performance in O.S.No.133/1973, however the appellant's father and Sri.Alam Khan are parties to the suit.
3. During the pendency of the respondent/defendant's suit in O.S.No.133/1973, Sri Alam -4- Khan has executed the sale deed dated 12.4.1973 in favour of the appellant. The suit in O.S.No.133/1973 is decreed on 24.6.1975. The appellant's father and Alam Khan have not contested the suit. The respondent/defendant has filed execution in Ex.No.29/1976 and has obtained sale deed for the suit schedule property in his favour in execution of the decree for specific performance, and possession of the suit schedule property is also delivered to him on 15.10.1979.
4. Meanwhile, the appellant has filed the suit in O.S.No.214/1975 for declaration of title based on the sale deed dated 12.4.1973 executed in his favour by Sri Alam Khan and for permanent injunction. The respondent, one of the defendants in this suit in O.S.No.214/1975, has contested the suit specifically asserting that the sale deed dated 12.4.1973 executed in favour of the appellant during the pendency of the suit in O.S.No.133/1973 is hit by the doctrine of lis pendens transfer and therefore not binding on the respondent/defendant. The appellant has filed an -5- application under Order XXIII Rule 1(3) of CPC seeking leave of the Court to withdraw this suit in O.S.No.214/1975 with liberty to file fresh suit on the same cause of action. The Court by its order dated 10.2.1978 has permitted the appellant to withdraw the suit with liberty to file fresh suit on the same cause of action.
5. The appellant did not file any suit for the next six years but instituted the present suit in O.S.No.225/1984 on 9.7.1984 for declaration of title and permanent injunction. The appellant in this suit in O.S.No.225/1984, in addition to the aforesaid circumstances, also pleaded that Sri.Alam Khan had mortgaged the suit schedule property under the mortgage deed 29.5.1963 in favour of Sri Khader Baig and Sri Fazlulla Khan. It was agreed between Sri Alam Khan and the appellant that the appellant should repay the mortgage amount to Sri Khader Baig and Sri Fazlulla Khan from out of the agreed total sale consideration and redeem the -6- mortgage. As such, Sri.Alam Khan executed the subsequent sale deed dated 12.4.1973 in his favour. He was not a party to the suit in O.S.No.133/1973 commenced by the respondent/defendant for specific performance.
6. The appellant insofar as the cause of action for this suit in O.S.No.225/1984 contended that in the year 1984, the respondent unlawfully attempted to dismantle the residential construction in the suit schedule property. However, the respondent/defendant resisted the suit denying the mortgage and the sale agreement in favour of the appellant and also contending that the present suit filed without disclosing initiation of the earlier suit in O.S.No.214/1975 would not be maintainable in law because of limitation and doctrine of res judicata and lis pendens.
7. The civil Court has framed Issues which required the appellant inter alia to prove that he has validly -7- purchased the suit schedule property under the sale deed dated 12.4.1973 and he is in possession of the suit schedule property. The respondent/defendant, in terms of the other Issues, is required to establish that he has acquired title to the property under the sale deed executed in his favour in execution of the decree for specific performance in O.S.133/1973 as well as the suit is hit by the doctrine of lis pendens and doctrine of res judicata. The civil Court has also framed additional Issue as regards the suit being barred by limitation.
8. The appellant examined himself as PW.1 and marked exhibits, including the mortgage deed executed in favour of Sri Khader Baig and Sri Fazlulla Khan by Sri Alam Khan, the agreement dated 25.1.1973 and the sale deed dated 12.4.1973 in his favour by Sri Alam Khan, and the pleadings in O.S.133/1973. The appellant also examined two other witnesses, Sri Khalandar and Sri Fazlulla Baig as PWs.2 and 3. The respondent/defendant -8- examined himself as DW.1, and also Sri Yasim Sab as DW.2 and Sri Lingappa as DW.3. The respondent marked the sale agreement dated 18.2.1973 executed in his favour (Ex.D3) and pleadings and judgment in O.S.No.133/1973 and in O.S.No.214/1975 (Exs.D6 to D.13) as exhibits from his side. In addition, the respondent also produced copies of the sale agreement dated 25.1.1973 and the sale deed dated 12.4.1973 executed by Sri Alam Khan in favour of the appellant.
9. The civil Court dismissed the appellant's suit holding that the sale deed dated 12.4.1973 in favour of the appellant is hit by the doctrine of lis pendens because this sale deed is executed in favour of the appellant during the pendency of the suit in O.S.No.133/1973. The civil Court also concluded that the appellant's suit would be hit by the principles of res judicata in view of the decision in O.S.No.133/1973 and barred by limitation because the suit -9- is filed beyond the prescribed time after the dismissal of O.S.No.214/1975.
10. The appellant being aggrieved by the civil Court's judgment filed first appeal in R.A.No.34/1995. The appellate Court has dismissed the appeal confirming the civil court's judgment holding that the civil Court was justified in dismissing the suit as being barred by limitation and because of the principles of res judicata. This second appeal is admitted for consideration of the following substantial questions of law:
"i. Whether the courts below committed illegality in holding that the decrees in O.S. No. 133/73 and the consequential execution proceedings in EP No. 29/76 are binding on the plaintiff when he is not a party to the same?
ii. Whether both the courts below committed illegality in holding that the sale deed dated 23.04.1973 in favour of plaintiff is not valid because of the fact that the same was executed during the pendency of O.S. NO. 133/73."
- 10 -
11. The learned counsel for the appellant submits that it is irrefutable that the appellant was not a party to the suit in O.S.No.133/1973 and in fact, his father, who could not have claimed any right in the subject property either under the sale agreement dated 25.1.1973 or the sale agreement dated 12.4.1973, was brought in as a defendant in the suit in O.S.No.133/1973. The appellant cannot be bound by the judgment in O.S.No.133/1973. The Courts below in the above circumstances also could not have held that the appellant's suit is hit by res judicata because of the decision in O.S.No.133/1973, or that the sale in favour of the appellant is hit by the doctrine of lis pendens only because the sale deed dated 12.4.1973 is executed in his favour during the pendency of the suit in O.S.No.133/1973. As such, the substantial questions will have to be answered in favour of the appellant.
12. The learned counsel for the respondents, on the other hand, argues that the substantial questions of law
- 11 -
would not arise for consideration inasmuch as it is beyond dispute that the sale deed dated 12.4.1973 is executed in favour of the appellant after the initiation of the suit in O.S.No.133/1973 by the respondent/defendant for specific performance. Further, the appellant has filed his first suit in O.S.No.214/1975 for declaration of title and permanent injunction. The respondent/defendant contested this suit in OS No. 214/1975 specifically pleading that the sale deed in favour of the appellant was hit by the doctrine of lis pendens adverting to the initiation of the suit in O.S.No.133/1973, the subsequent decree thereof on 24.6.1975 and the later sale deed in the execution proceedings. These circumstances, the learned counsel for the respondent submits, would also establish that the suit is barred if not under the principles of res judicata definitely under Order XXIII Rule 1(3) of Code of Civil Procedure, 1908 and by limitation.
- 12 -
13. The undisputed facts are that the appellant filed the suit in O.S.No.214/1975 for adjudication of title and permanent injunction relying upon the sale deed dated 12.4.1973 executed in his favour, and the respondent contested such suit relying upon the decree for specific performance in O.S.No.133/1973 and the consequential sale deed in the execution case filed by him. The appellant by order dated 10.2.1978 is permitted to withdraw this suit under the provisions of Order XXIII Rule 1(3) of CPC with liberty to file fresh suit. The appellant therefore even as of the date of the withdrawal of the suit in O.S.No.214/1975 in the year 1978 was aware of the sale agreement and the subsequent decree for specific performance granted in favour of the respondent/defendant. The appellant did not act upon the liberty given until 9.7.1984 when he filed the present suit in O.S.No.225/1984. In the meanwhile, the possession of the suit schedule property is delivered to the respondent on 15.10.1979 in the execution proceedings
- 13 -
filed after the sale deed pursuant to the decree for specific performance in O.S.No.133/1973.
14. In understanding the impact of the withdrawal of the suit in OS No.214/1975 with permission as contemplated under Order XXIII Rule 1(3) of CPC on the present suit in O.S.No.225/1984, and in deciding on the questions of res judicata and limitation, it would be useful to refer to the decision of a Division Bench of this Court in KV Sivakumar v. National Institute Of Mental Health and Neurosciences and Others reported in ILR 2016 Karnataka 3114. The Division Bench in this case after referring to the various decisions of the Hon'ble Supreme Court insofar as the significance of the phrase, 'in respect of the subject matter of such suit' as found in Order XXIII Rule 1(3) of CPC has concluded as follows:
"The expression "subject matter" is not defined in the Civil Procedure Code. The term "subject matter"
occurring in sub-clause (3) of Order XXIII Rule 1, Civil
- 14 -
Procedure Code, has been held to mean the plaintiffs cause of action for his suit. It means the series of facts or transaction alleged to exist giving rise to the relief claimed. In other words "subject matter" means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. Where the cause of action and the relief claimed in the second suit are not the same as the cause of action and relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject matter as the first suit. Consequently, if a plaintiff brings a suit on a different cause of action, even though it may relate to the same property, the same would not be barred under Order XXIII Rule 1 (3), Civil Procedure Code, despite the fact that the first suit was withdrawn without permission to bring a fresh suit. Where the party wants to file a suit on the basis of a cause of action different from the previous suit, the question of obtaining leave of the court does not arise."
15. The cause of action asserted by the appellant in the earlier suit in O.S.No.214/1975 is that he had inducted a tenant in the suit schedule property and the respondent was trying to interfere with the tenant's possession. But in
- 15 -
the present suit the cause of action asserted by the appellant is that the respondent, immediately prior to the date of the suit, was trying to dismantle residential construction in the property. The appellant in both these suits has sought for declaration of title to the suit schedule property and for permanent injunction. But, there cannot be any doubt that the cause of action pleaded by the appellant in the present suit is different and distinct from the cause of action pleaded in the earlier suit. Therefore, both the civil Court and the appellate Court are justified in their conclusion that the suit in O.S.No.214/1975 and the present suit in O.S.No.225/1984 are based on different and distinct causes of action. The present suit in O.S.No.225/1984 is not filed pursuant to the permission granted by the court in OS No. 214/1975 and is based on a distinct cause of action.
16. It is settled that for the principles of res judicata to apply to the subsequent suit, the parties must be the
- 16 -
same in both the suits, the subject matter of the suits must be identical, and the decision in the former suit must be on merits. The learned counsel for the parties do not dispute that the appellant is not a party to the suit in O.S.No.133/1973, and there is no adjudication in this suit on the appellant's title to the suit schedule property based on the sale deed dated 12.4.1973 executed in his favour by Sri Alam Khan while granting the decree of specific performance to the respondent/defendant. The appellant's earlier suit in OS No. 214/1975 is disposed of with liberty to file fresh suit on the same cause of action as contemplated under the provisions of Order XXIII Rule 1(3) of CPC without any adjudication on merits. In these facts and circumstances, it would be reasonable to hold that neither the judgement in O.S.No.133/1973 nor the dismissal of the appellant's suit in OS No. 214/1975 as withdrawn with liberty to file fresh suit on the same cause
- 17 -
of action would operate as res judicata insofar as the present suit in O.S.No.225/1984.
17. Significantly, as regards the appellant's suit in O.S.No.225/1984 being barred by limitation, it is indisputably established that the appellant had the knowledge of the decree for specific performance in O.S.No.133/1973 in favour of the respondent/defendant even as of 10.2.1978 when permission to withdraw the suit OS No. 214/1975 was granted. The limitation prescribed for a suit seeking declaratory relief, other than the declaratory relief as contemplated under Articles 56 and 57 of the Limitation Act, 1963, is three years under Article 58 of the Limitation Act, 1963. The period of limitation of three years under Article 63 commences when the right to sue first accrues.
18. If it is undeniably established that the appellant had the knowledge of a decree for specific performance in
- 18 -
favour of the respondent/defendant in O.S.No.133/1973 because of the respondent/defendant's defense in the former suit in OS No.214/1975 even as of 10.2.1978 when he was permitted to withdraw the suit in OS No. 214/1975, it is irrefutable that the right to sue first accrued when such defense was taken in denial of the appellant's title under the sale deed executed in his favour by Sri Alam Khan during the pendency of the suit in OS No. 133/1973. Both the civil and appellate Courts have concurrently held that the appellant is not able to establish possession of the suit schedule property in the light of the respondent's evidence that not only is the sale deed for the suit schedule property executed in his favour but possession thereof is also delivered to him on 15.10.1979. Therefore, the suit filed in the year 1984 stood clearly barred by limitation. The substantial questions of law framed are answered accordingly, and the appeal is dismissed affirming the
- 19 -
dismissal of the appellant's suit in OS No 225/1984 on the ground of limitation.
SD/-
JUDGE nv Ct:sr