Karnataka High Court
Sri Shirdi Sai Baba Charitable Trust (R) vs Smt.B.M.Kunjamma on 16 January, 2017
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE L. NARAYANA SWAMY
C.R.P. No.312 OF 2015
BETWEEN:
SRI SHIRDI SAI BABA CHARITABLE
TRUST (R) HYSODLUR VILLAGE,
VIRAJPET TALUK, KODAGU DISTRICT,
REPRESENTED BY ITS
MANAGING TRUSTEE,
PRESENTLY MS.K.A.PARVATHY
D/O LATE KOLERA B.ACHAIAH
AGED ABOUT 61 YEARS,
R/O HYSODLUR VILLAGE
VIRAJPET TALUK, KODAGU DISTRICT
BY HER GENERAL POWER OF
ATTORNEY HOLDER
MS. K. A. DEVAKI
AGED ABOUT 57 YEARS
D/O LATE KOLERA B ACHAIAH
R/AT: HYSODLUR VILLAGE,
VIRAJPET - 571 249. ... PETITIONER
(Party-in-person - Ms.Kolera A Devaki)
(BY SMT. M. JYOTHI, AMICUS CURIAE)
AND:
1. SMT. B .M .KUNJAMMA
D/O LATE MEDAPPA
AGED ABOUT 72 YEARS
RESIDING AT IYKOLA VILLAGE,
MURAND POST, MADIKERI TALUK
N.KODAGU - 57252.
2. SMT. B.M. KAMAVVA,
D/O LATE MEDAPPA
C/O K. B. PONNAPPA
AGED ABOUT 70 YEARS
2
RESIDING AT NEAR WOMENS
COLLEGE, ARGI VILLAGE
AND POST, VIRAJPET TALUK
S.KODAGU - 571 218.
3. BOLTHANGADA MUDDAPPA
S/O LATE MEDAPPA
RESIDING AT BELLUR VILLAGE
HYSODLUR POST,
VIRAJPET TALUK
S.KODAGU - 571 249.
4. SMT. KANNU
W/O LATE I.P. APPACHU,
AGED ABOUT 55 YEARS
RESIDING AT BELLUR VILLAGE,
HYSODLUR POST
VIRAJPET TALUK
KODAGU DISTRICT- 571 249.
5. I.A .KALAPPA
S/O LATE I .P. APPACHU
AGED ABOUT 29 YEARS
RESIDING AT BELLUR VILLAGE,
HYSODLUR POST
VIRAJPET TALUK
KODAGU DISTRICT - 571 249.
6. MISS. I .A. SAHANA
S/O LATE I .P. APPACHU
AGED ABOUT 26 YEARS
RESIDING AT C/O KANNU
BELLUR VILLAGE
HYSODLUR POST
VIRAJPET TALUK
KODAGU DISTRICT - 571 249.
7. MISS. SHARADA
W/O KISU,
AGED ABOUT 60 YEARS,
RESIDING AT CHOORIKAD
VILLAGE, KUTTA POST,
VIRAJPET TALUK - 571 250.
8. CHERIYAPANDA RAVI
S/O CHERIYAPANDA VENU
3
AGED ABOUT 56 YEARS,
RESIDING AT KIRGOOR
VILLAGE AND POST,
KODAGU DISTRICT
VIRAJPET TALUK - 571 218.
9. SMT. PUSHPA
W/O POOVAIAH
AGED ABOUT 50 YEARS,
RESIDING ATG BELLUR VILLAGE,
HYSODLUR POST
VIRAJPET TALUK
KODAGU DISTRICT - 571 118.
10. SMT. ITTEERA SHEELA GANAPATHY
AGED ABOUT 75 YEARS
11. ITTIRA VENU,
AGED ABOUT 53 YEARS,
12. SMT. ITTIRA NEELAMMA
AGED ABOUT 51 YEARS
13. SMT. ITTIRA PUSHPA
AGED ABOUT 49 YEARS
14. MISS ITTIRA REKHA
AGED ABOUT 34 YEARS.
RESPONDENTS NO.10 IS THE WIFE,
RESPONDENT NO.11 IS THE SON AND
RESPONDENTS NO.12 TO 14 ARE THE DAUGHTERS
D/O LATE GANAPATHY
ALL RESPONDENT NO.10 TO 14
RESIDING AT NEAR GADDIGE,
MADIKERI TOWN,
N. KODAGU - 571 112.
15. ITTIRA SOMAIAH .P
S/O PONNAPPA.I.K
AGED ABOUT 53 YEARS
BELLUR VILLAGE
HYSODLUR POST,
SRIMANGALA NAD,
4
VIRAJPET TALUK,
S.KODAGU - 571 112. ... RESPONDENTS
(BY SRI K .A.MONAPPA, ADV. FOR R1 TO R3
R-4, 10 & 14 .. SERVED
V/O DATED:29.1.2016-NOTICE TO R-7 IS H/S
V/O DATED:12.4.16-NOTICE TO R5, R6, R8 & R9 IS H/S
SRI RANJITH K.S. ADV., FOR R15
NOTICE TO R11 TO 13 D/W)
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THIS CRP IS FILED UNDER SECTION 115 OF CPC.,
AGAINST THE ORDER DATED 31.01.2015 PASSED ON
I.A.NO.2 IN R.A.NO.36/2013 ON THE FILE OF THE 2ND ADDL.
DISTRICT AND SESSIONS JUDGE, KODAGU, REJECTING
THE I.S.NO.2 FILED U/O 1 RULE 10(2) OF CPC.
THIS CRP COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
On the last occasion Mrs.M.Jyothi, learned counsel was requested to act as Amicus Curiae for the petitioner/party-in-person.
2. Petitioner made an application under Order-1 Rule-10(2) of CPC to come on record in O.S.No.37/2000 on the file of Senior Civil Judge, Virajpet. The suit filed by the plaintiff is for partition and separate possession of the suit schedule property in Sy.No.296 measuring 7-67 acres situated in 5 Virajpet. Petitioner herein made an application to come on record. The said application for impleading came to be rejected. Later on, suit has also been partly decreed and aggrieved party preferred Regular Appeal in RA No.36/2013 on the file of II Addl. Dist. Judge & Sessions Judge, Kodagu, Madikeri, sitting at Virajpet. The petitioner filed an application under Order-1 Rule-10(2) of CPC to come on record. The said application has been rejected by applying Sec.11 of CPC holding that principles of res judicata applies and also on the principle of estoppel. Against which this petition is filed.
3. Learned Amicus Curiae appearing for the petitioner submits that the order of the appellate authority is an error of law and on the wrong footing of application of Sec.11 of CPC. Sec.11 of CPC applies only when a subsequent suit is one and the same in respect of the same suit which had earlier been disposed between the same parties and the 6 subject matter would also be the same. In the instant case, what has been made is application by the petitioner under Order-1 Rule-10(2) of CPC for which Sec.11 of CPC would not apply. Initially such an application was filed before the trial court. Party- in-person had engaged the service of learned Advocate and filed a memo for withdrawal, but no order has been passed. Thereafter, petitioner filed an application under Or-1 Rule-10(2) of CPC before the trial court to come on record. The said application has been rejected in I.A.23. The reasons assigned by the trial court that petitioner has not assigned reasons in the affidavit as to how she is interested party for the purpose of coming on record in an interlocutory application as an impleading applicant. Similarly, when the said application has been failed, petitioner filed another application before the appellate court in R.A.No.36/2013. The said application was also rejected on the ground of res judicata and also on the principle of estoppel. 7 Petitioner has stated in his application that petitioner is in possession of the suit schedule property and in substantiating the same, revenue records were also referred therein and petitioner is a Trust in whose favour certain properties and the subject matter of the suit was dedicated by transferring. On transferring the property, Trust has been entered into revenue records. Hence petitioner is very much necessary party in adjudicating the matter. So when the ingredient of Order-1 Rule-10(2) of CPC by stating in the affidavit, the same would have been accepted but the same has been rejected applying Sec.11 of CPC and that is the error committed by the court below. However, principles of estoppel does not apply in this case and without going into the rejection of the application on the ground of Sec.11 of CPC is arbitrary.
4. In support of her submission, learned Amicus Curiae referred the judgment of Orissa High Court in 8 DAITARI PRASAD NAIK AND OTHERS Vs. UMAKANTA NAYAK AND OTHERS (AIR 1971 ORISSA-44) and submitted that merely if the present case has come up before the trial court with an application to come on record stating that her interest is involved in the proceedings, that itself is sufficient to allow the application. In support of the applicable of Sec.11 of CPC, learned counsel referred the judgment of Patna High Court in MAHADEO MAHTO AND OTHERS Vs. HIRALAL VERMA AND OTHER (AIR 1991 PATNA-235) and submitted that after the suit is dismissed as withdrawn, still it is obligatory on the ground to ensure accountability from the parties derived in question which do not operate as res judicata and requests this court to allow the petition.
5. Learned counsel appearing for the respondents submits that there is no merit in the contention and petition is to be dismissed. He further submits that 9 the appellate court has assigned reasons while dismissing the interlocutory application. Reasons stated by the petitioner before the trial court as well as the appellate court are one and the same. The grounds taken by the petitioner to come on record as an interested party has been rejected by the trial court after rejecting the same application before the appellate court. On these grounds, he requests this court to dismiss the petition.
6. Heard the learned Amicus Curiae appearing for the petitioner/party-in-person and the learned counsel appearing for the respondents.
7. The first question is the applicability of Sec.11 of CPC. Sec.11 of CPC bars the question from trying the same issue in the subsequent suit. It is true that the suit is filed between the same parties. What is barred it is in respect of the suit. CPC does not define as to include as applicant for the purpose of suit. But an application under the same provision 10 may be considered and rejected by assigning reasons. First appellate court rejected the application only on the ground of applying Sec.11 of CPC.. In AIR 1991 Patna-235 it is held that:
"It is true that principles of res judicata apply at different stages of the suit, but it is also well known that interlocutory orders do not operate as res judicata."
When a plain reading of Sec.11 of CPC, it bars only the suit and not applicable to the interlocutory applications. Under these circumstances, reasons assigned by the first appellate court in rejecting the application on the principles of res judicata does not arise. Secondly, the application made by the petitioner to come on record as an impleading applicant is concerned, at the initial stage petitioner engaged the services of the learned counsel and petitioner further says that petitioner filed a memo to withdraw the said impleading application. After learning, she filed one more application which the trial court has rejected by stating that to come on 11 records grounds have not been assigned as to what interest the petitioner has. In this regard, when an application is made by the petitioner that too by party-in-person, trial court shall take additional responsibility and also care. Petitioner has stated in the application before the trial court that they are in possession of the suit property which is the subject matter of the suit for partition and in support of their case they have produced the revenue records. Mere statement made before the court that they are interested parties as a third party and also third party statement cannot be believed. That itself would have been sufficient for the trial court to reject the application. Petitioner has produced the materials and claim that they are in possession of the property and their names have been entered in the revenue records. Secondly, similar application was filed before the first appellate court. As it is held that principles of res judicata is not applicable in making the application for impleading since it is an inter- 12 locutory application. Even before the first appellate court petitioner has stated that some Ittira Ganapathy and Ittira Chinnappa have dedicated the property to the petitioner way back in the year 1995. Since then petitioner-Trust is in occupation of the property that itself shows that they are interested parties, they have to be heard before passing any order. Learned Judge in ILR 2002 Kar.-2625 (ABDUL SATTAR AND OTHERS Vs. GURULINGAIAH AND ANOTHER) in which it has been held that the order passed on interlocutory applications and also orders passed in the same proceedings at earlier stages operates as res judicata at subsequent stage of the same proceedings. The said judgment may not be applicable on the facts and circumstances of the case. The suit has been partly allowed. Impleading application has been filed at this stage. After the disposal of the said suit, Regular Appeal has been filed by the aggrieved party in which petitioner has also filed an application for impleading. That appeal 13 is continuation of the suit and not different proceedings. Hence principles of res judicata is not applicable in the appeal. Trial court has assigned reasons in rejecting the same. Accordingly, the very application was filed in the appellate stage also. The filing of application at the appellate stage may not amount to the same proceedings for the purpose of res judicata. Under these circumstances, I hold that the judgment in ILR 2002 KAR.-2625 is not applicable. Under these circumstances, I held that the reasons assigned under Order-1 Rule-10(2) of CPC filed by the petitioner is not disposed of on the correct proposition of law.
8. This court felt that instead of remanding this application for re-consideration, but on the materials placed before the court viz., revenue records in which petitioner's name has been referred in respect of Sy.No.296 measuring 7-67 acres and the same extent of land against which plaintiff's name has also been 14 entered in the revenue records and the petitioner has also made an application before the revenue authorities. This also shows that petitioner is an interested party.
9. In the circumstances, I pass the following:
ORDER Application filed by the petitioner under Order- 1 Rule-10(2) of CPC is allowed. Petitioner is permitted to come on record in RA 36/2013.
Petitioner is permitted to amend the cause title.
This petition is accordingly disposed of. Services of Amicus Curiae is placed on record. Legal Service Committee is directed to pay Rs.5000/- to the Amicus Curiae.
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Registry is directed to communicate the operative portion of the order to the court below forthwith.
Sd/-
JUDGE R*