Karnataka High Court
Smt D N Mangala vs Smt Sunanda on 8 January, 2018
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
®
DATED THIS THE 8TH DAY OF JANUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.25246/2017 (GM-CPC)
BETWEEN:
SMT. D.N.MANGALA
W/O SATHISH
AGED ABOUT 32 YEARS
HOUSE WIFE
MUTTANAHALLY VILLAGE
C.A.KERE HOBLI, MADDUR TALUK
MANDYA DISTRICT - 571 422.
... PETITIONER
(BY SRI G.M.ANANDA, ADV.,)
AND:
1. SMT. SUNANDA
W/O D.C.NANJUNDAIAH
AGED ABOUT 50 YEARS.
2. D.N. MADHU
S/O D.C. NANJUNDAIAH
AGED ABOUT 35 YEARS
2
AGRICULTURIST
BOTH ARE RESIDENT OF
DODDARASINAKERE VILLAGE
C.A.KERE HOBLI
MADDUR TALUK
MANDYA DISTRICT - 571 422.
3. SMT. D.N. MAMATHA @ POOJA
W/O. NARENDRAGOWDA
D/O. D.C.NANJUNDAIAH
AGED ABOUT 28 YEARS
HOUSE WIFE
DOOR NO.2324, VINAYAKA BADAVANE
NAGADEVANAHALLI, JNANABHARATHI
BENGALURU - 560 056.
4. SMT. MANUTHA D.N.
W/O. SANJEEVEGOWDA
(S/O. POLICE SUB-INSPECTOR
BASAVARAJAPPA) AND
D/O. D.C.NANJUNDAIAH
AGED ABOUT 27 YEARS
HOUSE WIFE
CHAIRMAN KARIYAPPA'S HOUSE
NEAR KOLLAPURADAMMA TEMPLE
SUNKADAKATTE,
BENGALURU - 560 056.
... RESPONDENTS
(BY SMT. VAISHALI HEGDE, ADV.,)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE IMPUGNED ORDER DTD.11.4.2017 PASSED BY THE
SENIOR CIVIL JUDGE, MADDUR, REJECTING IA NO.19
FILED BY THE PETITIONER UNDER ORDER 26 RULE 10(A)
3
R/W. SECTION 151 OF THE CODE OF CIVIL PROCEDURE,
1908 IN O.S.NO.23/2010 UNDER ANNEXURE-A AND
ALLOW THE APPLICATION IN IA NO.19 FILED UNDER
ORDER 26 RULE 10(A) R/W. SECTION 151 OF THE CODE
OF CIVIL PROCEDURE, 1908 BY THE PETITIONER UNDER
ANNEXURE-D AS PRAYED THEREIN, ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The plaintiff filed the present writ petition against the order dated 11.04.2017 on I.A.No.19 made in O.S.No.23/2010 dismissing the application filed by the plaintiff under Order 26 Rule 10A r/w Section 151 of Code of Civil Procedure with cost of Rs.200/-.
2. The plaintiff filed the suit for partition and separate possession in respect of the suit schedule properties contending that the plaintiff and defendants are members of the joint family and there was no partition in the joint family properties. The defendants filed written statement and denied the plaint averments 4 and contended that there was no relationship between the plaintiff and defendants and sought for dismissal of the suit.
3. When the matter was posted for plaintiff's evidence, the plaintiff filed application - I.A.No.19 under Order 26 Rule 10A r/w Section 151 of Code of Civil Procedure for conducting DNA profiling test of the plaintiff and defendant No.1 as it is quite essential for appointing proper person as a Court Commissioner. The said application was opposed by the defendants by filing objections.
4. The trial Court considering the application and objections, by its order dated 11.04.2017 dismissed the application for the relief sought for to conduct DNA profiling test of the plaintiff and defendant No.1 and held that the plaintiff had filed similar application I.A.No.12 under Order 26 Rule 10A r/w Section 151 of 5 Code of Civil Procedure seeking the similar relief and the trial Court by order dated 18.08.2012 has already dismissed the said application and the said order has reached finality. It has further held that the plaintiff has not challenged the said order before any Appellate Court and it is for the plaintiff to prove the relationship between herself and the defendant No.1. Hence, the present writ petition is filed.
5. I have heard the learned counsel for the parties to the lis.
6. Sri G.M. Ananda, learned counsel for the petitioner contended that the impugned order passed by the trial Court dismissing the application filed under Order 26 Rule 10A r/w Section 151 of Code of Civil Procedure for conducting DNA profiling test is erroneous and contrary to the material on record. He would further contend that res judicata will not apply to 6 any orders passed on an interlocutory application and it applies only on merits of the main matter. He further contended that the suit is filed for partition and separate possession and the application filed for conducting DNA profiling test is essential, since the defendants have disputed the very relationship between the plaintiff and defendant No.1. He further contended that the trial Court ought to have allowed the application in order to do justice between the parties. Therefore, he sought to quash the impugned order passed by the trial Court by allowing the writ petition.
7. In support of his contentions, learned counsel relied upon the following decisions:
1) Arjun Singh vs. Mohindra Kumar and Others reported in AIR 1964 SC 993 (para 21) 7
2) The United Provinces Electric Supply Co. Ltd., Allahabad vs. Their Workmen reported in AIR 1972 SC 1201 (para 15)
8. Per contra, Smt. Vaishali Hegde, learned counsel for the respondents sought to justify the impugned order and contended that earlier similar application was filed and the trial Court by the order dated 18.08.2012 has rejected the said application. The said order has reached finality. Again the present application was filed reiterating the very averments made in the previous application. The trial Court is justified in dismissing the application as barred by res judicata. She would further contend that in the present writ petition, the petitioner has suppressed the fact of rejection of the similar application and no where in the writ petition it is disclosed about the earlier rejection 8 order passed by the Court. Therefore, she sought for dismissal of the writ petition.
9. In support of her contentions, learned counsel relied upon the following decisions:
1) Y.B. Patil and Others vs. Y.L. Patil reported in (1976) 4 SCC 66 (3 Judges Bench) (para 4)
2) Hope Plantations Ltd. vs. Taluk Land Board, Peermade and Another reported in (1999) 5 SCC 590 (para 26)
3) Dattatreya vs. Srinivasa Bhat Thammanna reported in ILR 1985 (1) Kar 1946.
10. Having heard the learned counsel for the parties, it is not in dispute that the plaintiff filed suit for partition and separate possession contending that the plaintiff and defendants are members of the joint family and there was no partition. The defendants filed written statement and denied the relationship between the 9 plaintiff and defendants. It is also not in dispute that earlier before completion of evidence, an application under Order 26 Rule 10A r/w Section 151 of Code of Civil Procedure was filed to conduct DNA profiling test of the plaintiff and defendant No.1 to prove the relationship between them. The said application came to be rejected by the trial Court and the same has reached finality. The same has been referred to in the impugned order passed by the trial Court. It is also not in dispute that after completion of evidence, when the matter was posted for arguments, again same application for similar prayer under Order 26 Rule 10A r/w Section 151 of Code of Civil Procedure was filed and the trial Court by the impugned order dated 11.04.2017 dismissed the application on the ground that it is barred by res judicata.
10
11. A plain reading of the provisions of Section 11 of the Code of Civil Procedure makes it clear that no Court shall try any 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 and in issue decided between the parties at two stage in the same litigation so that if an issue has been decided at an earlier stage against a party, it cannot be allowed to be re-agitated by him at the subsequent proceedings.
12. The principle of res judicata is conceived in the large 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 require that a party which has once succeeded on an issue should not be permitted to be harassed by 11 multiplicity of proceedings involving determination of the same issue.
13. Section 11 of the Code of Civil Procedure embodies the rule of conclusiveness as evidence, or bars the plea of an issue tried in a earlier suit founded on a plaint in which the matter is directly and substantially in issue and became final. In a later suit between the same parties or their privies in a competent court to try such subsequent suit in which the issue has been directly and substantially raised and decided in the judgment and decree in the former suit, would operate as res judicata. Section 11 of Code of Civil Procedure does not create any right or interest in the property, but merely operates as a bar to try the same issue once over. In other words, it aims to prevent multiplicity of the proceedings and accords finality to an issue which directly and substantially had arisen in the former suit 12 between the same parties. It is based on public policy as well as private justice that would apply, therefore, to all judicial proceedings, whether civil or otherwise. It equally applies to quasi-judicial proceedings of the tribunals.
14. Doubtless the principle of res judicata is a fundamental doctrine of law, that there must be an end to litigation. But the plea of res judicata has to be specifically and expressly raised. The foundation of the plea of res judicata must be laid in the pleadings. If this was not done, no party would be permitted to raise it for the first time at the stage of the appeal. The only exception to this requirement is when the issue of res judicata is in fact argued before the lower court.
15. The Hon'ble Supreme Court considering the provisions of Section 11 of Code of Civil Procedure and Section 115 of the Indian Evidence Act in the case of 13 Bhanu Kumar Jain vs. Archana Kumar reported in AIR 2005 SC 626 at para-30 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 issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of res judicata creates a different kind of estoppel viz., Estoppel By Accord."
16. The Hon'ble Supreme Court while considering the provisions of Section 11 of the Code of Civil Procedure in the case of C.V. Rajendran vs. N.M. Muhammed Kunhi reported in AIR 2003 SC 649 has held as under:
"The principle of res judicata applies as between two stages in the same litigation so that if an issue has been decided at an earlier stage against a party it cannot be allowed to be reagitated by him at a subsequent stage in the 14 same suit or proceeding. Thus, where the question whether S. 15 of the Act bars the eviction petition, was decided against the tenants by the appellate authority at the earlier stage of suit and it was allowed to become final, it is not open to the tenants to reagitate the same at the subsequent stage of the suit."
17. The Apex Court in the case of Y.B. Patil and Others vs. Y.L. Patil reported in (1976) 4 SCC 66 (3 Judges Bench), has held as under:
"4. In appeal before us Mr. Gupte on behalf of the appellants has contended that the High Court was in error in not interfering with the order of the Tribunal whereby the revision petition filed by the appellants had been dismissed. It is urged that the Tribunal in affirming the findings of the Assistant Commissioner and the Deputy Commissioner regarding the question of the appellants being strangers qua the land in dispute took a very restricted view of section 79 of the Act dealing with revision. This contention, in our opinion, is not well founded. The High Court at the time of the decision of the earlier writ 15 petition on December 18, 1964 recorded a finding and gave directions to the Tribunal not to reopen the questions of fact in revision. The Tribunal while passing the order dated September 12, 1967 complied with those directions of the High Court. The appellants are bound by the judgment of the High Court and it is not open to them to go behind that judgment in this appeal. No appeal was filed against that judgment and it has become final. It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding. In view of the High Court judgment dated December 18, 1964, the Tribunal while passing the order dated September 12, 1967, disposing of the revision petition filed by the appellant, could not reopen the questions of fact which had been decided by the Assistant Commissioner and the Deputy Commissioner. The High Court, in our opinion, was right in holding in the judgment under appeal that the concurrent findings of fact arrived 16 at by the Assistant Commissioner, the Deputy Commissioner and the Tribunal cannot be set aside in the writ petition. The appeal consequently fails and is dismissed but in the circumstances with no order as to costs."
18. The Apex Court in the case of Hope Plantations Ltd. vs. Taluk Land Board, Peermade and Another reported in (1999) 5 SCC 590 (3 Judges Bench), has held as under:
"26. It is settled law that principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for 17 decision in the earlier litigation. These two aspects are 'cause of action estoppel' and 'issue estoppel'. These two terms are of common law origin. Again once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that issue was wrongly determined. their only remedy is to approach the higher forum if available. the determination of the issue between the parties gives rise to as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operated in subsequent suits between the same parties in which the same issue arises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice."
19. The Hon'ble Supreme Court in the case of Barkat Ali and Another vs. Badrinarain (Dead) by 18 Lrs., reported in (2008) 4 SCC 615, at paragraphs 11 and 13 has held as under:
"11. There is no dispute and it has not been agitated that the order for proceeding by the judgment under Order XXI Rule 22 amounts to a decree under Section 47 of CPC and it is appealable as a decree i.e to say it is not an appeal against the interim order but an appeal against the decree which is provided against the final order. It means that at the different stages of the execution, orders passed by the executing court have attained finality unless they are set aside by way of appeal before the higher forum. Otherwise they bind the parties at the subsequent stage of the execution proceedings so that the smooth progress of execution is not jeopardised and the stage which reached the finality by dint of various orders of the Order XXI, operates as res judicata for the subsequent stage of the proceedings. Since the order passed at different stage itself operates as a decree and is appealable as such, the same cannot be challenged in appeal against subsequent orders also, because appeal against an order passed under Order XXI Rule 22 does not amount to 19 appeal against order at initial stage, but amounts to a decree finally determining the question. That is why no appeal against orders made under Order XXI has been provided under Order 43.
13. The principles of res judicata not only apply in respect of separate proceedings but the general principles also apply at the subsequent stage of the same proceedings also and the same Court is precluded to go into that question again which has been decided or deemed to have been decided by it at an early stage."
20. The contention of learned counsel for the petitioner that res judicata is not applicable to the orders passed on an interlocutory application but is applicable only on merits of the case as held by the Hon'ble Supreme Court in the case of Arjun Singh vs. Mohindra Kumar and Others reported in AIR 1964 SC 993 and The United Provinces Electric Supply Co. Ltd., Allahabad vs. Their Workmen reported in AIR 1972 SC 1201 cannot be accepted and is not 20 applicable to the facts of the present case. It was made prior to amended provisions to Section 11 of Code of Civil Procedure. The explanation VII and VIII to the provisions of Section 11 of Code of Civil Procedure was inserted by Act 104 of 1976 with effect from 01.02.1977.
21. The decision in the case of The United Provinces Electric Supply Co. Ltd., Allahabad vs. Their Workmen reported in AIR 1972 SC 1201 at para 15 has held that,-
"15.........quashing the award after following the decision of term Court in Guest, Keen, Williams Private Ltd. Vs. P.J. Sterling and Others, should be deemed to be final and should debar any fresh consideration or decision of that point by virtue of the Rule or principle of resjudicata."
The said judgment, in fact is against the petitioner.
21
22. In view of the amendment made to the provisions of Section 11 of Code of Civil Procedure and the subsequent dictums of the Hon'ble Supreme Court stated supra makes it clear that any issue has been decided at an earlier stage against a party it cannot be allowed to be re-agitated by him at a subsequent stage in the same suit or proceeding. Therefore, the contention of the learned counsel for the petitioner that res judicata will not apply to any interlocutory orders passed in the same proceedings at a subsequent stage cannot be accepted.
23. Learned counsel for the respondents submits that the judgment relied in the case of Arjun Singh vs. Mohindra Kumar and Others reported in AIR 1964 SC 993, stated supra has been reconsidered and decided by the judgment in the case of Barkat Ali and Another vs. Badrinarain (Dead) by Lrs., 22 reported in (2008) 4 SCC 615 at paragraphs 14 and 15 which is held as under.
"14. In Arjun Singh v. Mohindra Kumar and Ors. it was observed as follows: (AIR pp.999- 1000, paras 10-11) "10.......Scope of principle of res judicata is not confined to what is contained in Section 11 but is of more general application. Again, res judicata could be as much applicable to different stages of the same suit as to findings on issues in different suits...
11......where the principle of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides, the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and the relevant factors to be considered before the principle is held applicable."
15. In Satyadhyan Ghosal and Ors. v. Smt. Deorajin Debi and Anr. (AIR 1960 SC 941) it was observed as follows:
23
"8. The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial Court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings."
24. In view of the aforesaid reasons, the impugned order passed by the trial Court dismissing the application - I.A.No.19 under Order 26 Rule 10A r/w Section 151 of Code of Civil Procedure is in accordance with law. The petitioner has not made out any ground to interfere with the impugned order under Article 227 of the Constitution of India. Accordingly petition is dismissed.
25. At this stage, learned counsel for the petitioner submits that in view of pendency of the writ petition, since the matter was posted for defendants arguments, the plaintiff has not argued the matter, if it 24 is so, it is always open for the petitioner/plaintiff to file application seeking permission of the Court for arguments of the plaintiff, in accordance with law.
Ordered accordingly.
SD/-
JUDGE ca