Karnataka High Court
N Jagannatha Reddy vs Smt Venkatamma on 9 November, 2017
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 09TH DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.24628 OF 2015 (GM-CPC)
BETWEEN:
N. Jagannatha Reddy,
S/o Narayana Reddy,
Aged 61 years,
R/at Bidarahally,
Vigro Nagar Post,
Bengaluru-560041 ....Petitioner
(By Sri.Nitish K.N, Advocate
For Sri. K.V.Narasimhan, Advocate)
AND:
1. Smt. Venkatamma,
W/o Late Ramappa,
R/o Gopindyavarapalli,
Lepakshi Mandalam,
Hindupur Taluk,
Ananthapur District,
Andhra Pradesh - 570 101
2. Smt. R. Mamatha,
W/o S. Narayanaswamy,
Aged 39 years,
R/a Doddagubbi Village,
Bidarahalli Hobli,
2
Bengaluru East Taluk,
Bengaluru - 562 213 ... Respondents
(By Sri.G. Papi Reddy, Advocate for R2;
R3 and R4 are served but unrepresented; R1 dead)
This Writ Petition is filed under Article 227 of the
Constitution of India, praying to quash the order at
Annexure-F dated 17.04.2015 passed in
O.S.No.159/2007 by the learned Civil Judge (Sr.Dn.)
and JMFC at Chickballapura on I.A.No.17.
This Petition coming on for further orders, this
day, the Court made the following:
ORDER
The petitioner has filed the present writ petition against the order dated 17.04.2015 passed on I.A.No.17 in O.S.No.159/2007 by the learned Civil Judge (Sr.Dn) and JMFC, Chickballapura, allowing the application under Order I Rule 10(2) of the Code of Civil Procedure filed by the proposed defendant No.2.
2. The present petitioner who is the plaintiff before the trial Court has filed the suit in O.S.No.159/2007 for specific performance to enforce the 3 agreement dated 23.06.1997, said to have been executed by the defendant No.1-Venkatamma contending that defendant No.1-Venkatamma being the absolute owner in physical possession and enjoyment of the suit schedule property, on 23.06.1997 she had approached the plaintiff and requested to purchase the suit schedule property. Accordingly, plaintiff accepted the offer and entered into an agreement of sale with the defendant No.1 for valuable consideration of Rs.15,500/- per acre. Accordingly, the defendant No.1 has received an advance consideration of Rs.30,000/- from the plaintiff. Further, defendant No.1 has also agreed to execute the Registered Sale deed in favour of the plaintiff as and when she called upon by the plaintiff, on receipt of balance consideration amount at the time of registration and at the cost of the plaintiff.
3. It is further contended that the defendant has received a total sum of Rs.55,000/- from the 4 plaintiff in respect of sale consideration on various dates. Inspite of repeated requests made, defendant No.1 did not come forward to execute the sale deed. Therefore, the plaintiff constrained to issue legal notice and the same was served on defendant No.1 on 02.03.2017. But the defendant No.1 refused to execute the registered sale deed. Therefore, suit was filed for the relief of specific performance.
4. Defendant No.1 has filed the written statement under Order VIII, Rule 1 of the Code of Civil Procedure denied the plaint averments and contended that the alleged agreement of sale dated 23.06.1997 is created and forged one and the defendant No.1 never executed any alleged agreement of sale in favour of the plaintiff. Therefore, she sought for dismissal of the suit.
5. During the pendency of the proceedings, the respondent No.2-R.Mamatha filed an application under 5 Order I, Rule 10(2) read with Section 151 of the Code of Civil Procedure to come on record, contending that the respondent No.2-Mamatha had purchased the suit schedule property on 30.05.2007 and she is the bonafide purchaser and is entitled to come on record to defend her case. Said application was opposed by plaintiff by filing objections. The trial Court after considering the application and objections by the impugned order dated 17.04.2015 has allowed IA.No.17 filed by the respondent No.2 under Order I, Rule 10(2) read with Section 151 of the Code of Civil Procedure. Hence, the present writ petition is filed.
6. I have heard the learned counsel for the parties to the lis,
7. Sri Nitish, learned counsel appearing for the plaintiff-petitioner vehemently contended that the impugned order passed by the trial Court in allowing 6 the application filed by the proposed defendant No.2 / respondent No.2 is erroneous and contrary to the materials on record. He further contended that the similar application which was filed by the plaintiff under the same provision i.e., Order I, Rule 10(2) of the Code of Civil Procedure before the trial Court to implead the respondent No.2 as party to the proceedings was dismissed by the trial Court on 02.06.2012 holding that the proposed defendant No.2 / respondent No.2 is neither necessary nor proper party to the present suit. When the said order was passed by the very same Court and has reached its finality, the second application filed under the same provisions, is not maintainable which amounts to res-judicata and therefore, he sought to quash the impugned order passed by the trial Court by allowing the present writ petition.
8. In support of his contention, he relied upon the dictum of this Court in the case of "DATTATREYA 7 V/S SRINIVASA BHAT THAMMANNA" reported in ILR 1985 KAR 1946.
9. Per contra, Sri Papi Reddy the learned counsel for the respondent No.2 sought to justify the impugned order and contended that the plaintiff himself has filed earlier application under Order I, Rule 10(2) of the Code of Civil Procedure to implead the respondent No.2 herein as a party on the ground that she has purchased the property from defendant No.1- Venkatamma on 30.05.2007. The trial Court after considering the application and objections, passed an order dated 02.06.2012, rejected the application filed by the plaintiff for impleading the respondent No.2 and said order has reached its finality and so far, the plaintiff has not challenged the said order.
10. He would further contended that, thereafter, the proposed defendant No.2/respondent No.2 has filed 8 the present application contending that, the application filed by the plaintiff came to be rejected and therefore, present application is filed, as such there cannot be any res-judicata. Hence, he sought to dismiss the writ petition.
11. In view of the rival contentions urged by the learned counsel for the parties, the point that arises for consideration in the writ petition is:
Whether the trial Court is justified in allowing the application under Order I Rule 10(2) of CPC, when similar application was rejected by the trial Court on 02.06.2012 in view of the provisions of Section 11 of the Code of Civil Procedure?
12. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the material on record carefully. 9
13. It is not in dispute that the plaintiff has filed suit for specific performance against the defendant No.1-Venkatamma in respect of the alleged agreement of sale deed dated 23.06.1997, contending that he has entered into an agreement with the respondent No.1- defendant No.1 to an extent of 4 acres 26 guntas of land which is more fully described in the schedule for valuable consideration. Said agreement of sale was disputed by the defendant No.1 by filing written statement and contended that the alleged agreement of sale dated 23.06.1997 was created by the plaintiff and she never executed any agreement and sought for dismissal of the said suit. It is also not in dispute that even before the agreement of sale entered into between the plaintiff and defendant No.1. The defendant No.1 entered into sale agreement dated 09.12.1996 in favour of the proposed defendant No.2 / respondent No.2 and purchased the suit property from the defendant No.1 10 under a registered sale deed dated 30.05.2007 i.e., during the pendency of the proceedings.
14. It is not in dispute that the plaintiff filed an application under Order 1, Rule 10 (2) of the Code of Civil Procedure to implead the proposed defendant No.2 / respondent No.2 to come on record, the trial Court has dismissed the application by its order dated 02.06.2012 and recorded the finding that the suit was filed on 22.03.2007. According to the plaintiff, it is the defendant No.1 who sold the property in favour of Smt. R.Mamatha on 30.05.2007 during the pendency of the suit. When the sale deed executed during the pendency of the suit, the sale is hit by the provisions of lis- pendence. Therefore, if any decree is passed in this case, it will affect the interest of proposed defendant No.2 also. Moreover, the suit filed by the plaintiff is for the relief of Specific Performance of contract, the plaintiff has to prove the execution of the agreement by 11 the defendant No.1. If the decree is passed against the defendant No.1, that decree is binding on the present purchaser also. Without impleading the person mentioned in the application suit can be effectively decided. Therefore the said person is neither necessary nor proper party in the said suit. The said order passed by the trial Court dated 02.06.2012 has reached finality.
15. Either plaintiff or defendant No.2 have not challenged the said order. When things stood thus, the second application was filed by the impleading applicant on 05.04.2014 and the same was opposed by the plaintiff. The trial Court by considering the application and objections, by the impugned order dated 17.04.2015 has observed that, "perused the affidavit, wherein the applicant Mamatha has contended that she was the earlier registered agreement holder in respect of the suit schedule property executed by same defendant 12
- Venkatamma who executed registered sale deed in favour of applicant on 09.12.1999. Hence, she is proper and necessary party" and accordingly, allowed the application.
16. Unfortunately, the trial Court has not considered the fact that the very same Court itself has rejected the application filed by the plaintiff in the same proceedings by an order dated 02.06.2012 filed under the provisions of Order I rule 10(2) of the Code of Civil procedure. No reference is made to the previous order and the Court also recorded the findings that the proposed applicant who purchased the property during the pendency of the proceedings is not a necessary party to adjudicate the dispute between the plaintiff and defendants. The suit is for specific performance and if any decree is passed against the defendant, decree would also bind on the purchaser. If it is so, the trial Court ought not to have allowed the second application, 13 which amounts to res-judicata. In view of the provisions of Section 11 of the Code of Civil Procedure, which reads as under:
11. Res Judicata--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, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I - The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
14Explanation II - For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to right of appeal from the decision of such Court.
Explanation III - The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV - Any matter which might and ought to have been made ground defence or attach in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V - Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
15Explanation VI - Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. Explanation VII - The provisions of section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be constructed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for execution of that decree. Explanation VIII - An issue heard and finally decided by a court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent 16 suit or the suit in which such issues has been subsequently raised."
17. 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.
18. 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 a 17 multiplicity of proceedings involving determination of the same issue.
19. 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 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 between the same parties. It is based on public policy as well as private justice that 18 would apply, therefore, to all judicial proceedings, whether civil or otherwise. It equally applies to quasi- judicial proceedings of the tribunals other than the civil courts.
20. 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.
21. 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 19 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., Estopper By Accord."
22. 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:
20
"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 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."
23. This Court while considering the provisions of Section 11 of the Code of Civil Procedure, in the case of "DATTATREYA -vs- SRINIVASA BHAT THAMMANNA"
reported in ILR 1985 KAR 1946, at para 7 held as under:21
"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."
24. In view of the same, the impugned order passed by the trial Court cannot be sustained. 22
25. For the reasons stated above, writ petition is allowed. Impugned order passed by the Senior Civil Judge and JMFC, Chickballapura dated 17.04.2015 allowing the application IA No.17 filed under Order I Rule 10(2) of the Code of Civil Procedure in OS No.159/2007 is hereby quashed. However, it is made clear that, it is always open for the applicant / respondent No.2 to establish her rights in pursuance of the registered sale deed, in accordance with law.
26. In view of the disposal of main petition, IA.No.1/2017 does not survive for consideration. Accordingly, IA No.1/2017 also disposed of.
Sd/-
JUDGE SB