Karnataka High Court
M/S Mandovi Motors vs Smt. Bharathi on 29 November, 2018
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER 2018
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
CIVIL REVISION PETITION No.354 /2018
C/W
CIVIL REVISION PETITION No.357/2018
IN C. R. P. No.354 /2018
BETWEEN:
M/S MANDOVI MOTORS
A REGISTERED COMPANY REPRESENTED BY ITS
MANAGER-ACCOUNTS
MR. ASHOK KUMAR P. R.
S/O RATHNAKUMAR P. S.
AGED ABOUT 41 YEARS
ARAVIND BUILDING, BALMATTA ROAD
MANGALORE-575 001. ... PETITIONER
(BY SMT.NEERAJA KARANTH, ADV. )
AND:
1. SMT. BHARATHI
D/O LATE THIMMAPPA SHETTY
AGED ABOUT 59 YEARS
R/AT NEERALA
KRUPADHAMA, BONDANTHILA
2
VILLAGE AND POST
MANGALURU-575 029.
2. SMT. KUSUMA
D/O LATE THIMMAPPA SHETTY
AGED ABOUT 69 YEARS
R/A CASADA-MEMORIES
A.R.D'SOUZA LANE
LOWER BENDORE
KANKANADY POST
MANGALURU-575 002.
3. SRI. LOKESH
S/O LATE RATHI SHETTY
AGED ABOUT 65 YEARS,
SMT. KAMALA SHETTY
W/O LATE NARAYANA SHETTY
AGED ABOUT 87 YEARS (SINCE DEAD)
4. SRI. PADMANABHA SHETTY
S/O. LATE NARAYANA SHETTY
AGED ABOUT 55 YEARS,
5. SMT. RAJEEVI
W/O PADMANABHA SHETTY
AGED ABOUT 47 YEARS,
6. SMT. KALYANI SHETTY
W/O LATE VITTALA SHETTY
AGED ABOUT 80 YEARS,
7. SRI. RAMESH
S/O LATE VITTALA SHETTY
AGED ABOUT 64 YEARS,
3
8. SRI. RAGHURAMA
S/O LATE VITTALA SHETTY
AGED ABOUT 62 YEARS,
9. SRI. SADASHIVA
S/O LATE VITTALA SHETTY
AGED ABOUT 60 YEARS,
10. SMT. KAMALAKSHI
D/O LATE SANJEEVA SHETTY
AGED ABOUT 60 YEARS,
11. SMT. VIJAYA BHARATHI B. RAI
W/O MR.K.B.BALAKRISHNA RAI
AGED ABOUT 44 YEARS
R/A SRI. NAVADURGA PRASAD
MANGALURU BENGALURU ROAD
KANNUR POST, PADIL
MANGALURU-575 007. ... RESPONDENTS
(BY SRI. M. SUDHAKAR PAI, ADV. FOR C/R1)
THIS CRP FILED UNDER SEC.115 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED:
22.06.2018 PASSED ON IA.NO.VI IN OS.NO.164/2017 ON
THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND
CJM., MANGALURU D.K., DISMISSING THE IA.NO. VI
FILED UNDER ORDER VII RULE 11(d) OF CPC., PRAYING
TO DISMISS THE SUIT AS BARRED BY PRINCIPALES OF
RES-JUDICATA.
4
IN C. R. P. No.357/2018
BETWEEN:
1. SRI. PADMANABHA SHETTY
S/O. LATE. NARAYANA SHETTY
AGED ABOUT 55 YEARS,
2. SMT. RAJEEVI
W/O. PADMANABHA SHETTY
AGED ABOUT 47 YEARS,
BOTH THE APPLICANTS ARE R/A
HITHLU MANE
KANNUR VILLAGE AND POST
PADIL,
MANGALURU 575007. ...PETITIONERS
(BY SMT.NEERAJA KARANTH, ADV. )
AND:
1. SMT. BHARATHI
D/O LATE RATHI SHETTY &
THIMMAPPA SHETTY
AGED ABOUT 59 YEARS
R/AT NEERALA
KRUPADHAMA, BONDANTHILA
VILLAGE AND POST
MANGALURU-575 029.
2. SMT. KUSUMA
D/O LATE RATHI SHETTY &
THIMMAPPA SHETTY
AGED ABOUT 69 YEARS
R/A CASADA-MEMORIES
5
A.R.D'SOUZA LANE
LOWER BENDORE
KANKANADY POST
MANGALURU-575 002.
3. SRI. LOKESH
S/O LATE RATHI SHETTY
AGED ABOUT 65 YEARS,
SMT. KAMALA SHETTY
W/O LATE NARAYANA SHETTY
AGED ABOUT 87 YEARS (SINCE DEAD)
4. SMT. KALYANI SHETTY
W/O. LATE. VITTALA SHETTY
AGED ABOUT 80 YEARS,
5 SRI. RAMESH
S/O. LATE. VITTALA SHETTY
AGED ABOUT 64 YEARS,
6. SRI. RAGHURAMA
S/O. LATE. VITTALA SHETTY
AGED ABOUT 62 YEARS,
7. SRI. SADASHIVA
S/O. LATE. VITTALA SHETTY
AGED ABOUT 60 YEARS,
8. SMT. KAMALAKSHI
D/O. LATE. SANJEEVA SHETTY
AGED ABOUT 60 YEARS
RESPONDENT NOS.3 TO 8
R/AT HITHLU MANE
KANNUR VILLAGE AND POST
6
PADIL,
MANGALURU 575007.
9. M/S MANDOVI MOTORS
A REGISTERED COMPANY
REPRESENTED BY ITS
MANAGING DIRECTOR
AROOR PRAKASH RAO
S/O.LATE AROOR UMASHANKAR RAO
AGED ABOUT 41 YEARS
OPP:HOTEL ROOPA
ARAVIND BUILDING
BALMATTA ROAD
MANGALORE 575 001.
10. SMT. VIJAYA BHARATHI B. RAI
W/O. MR. K.B. BALAKRISHNA RAI
AGED ABOUT 44 YEARS
R/A SRI. NAVADURGA PRASAD
MANGALURU- BENGALURU ROAD
KANNUR POST, PADIL
MANGALURU- 575 007. ... RESPONDENTS
(BY SRI. M. SUDHAKAR PAI, ADV. FOR C/R1)
THIS CRP FILED UNDER SECTION 115 OF CPC,
AGAINST THE ORDER DATED 22.06.2018 PASSED ON
I.A.NO. VII IN O.S.NO. 164/2017 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND CJM
MANGALURU.D.K, DISMISSING THE I.A.NO.VII FILED
UNDER ORDER VII RULE 11(d) OF CPC.
THESE CIVIL REVISION PETITIONS HAVING BEEN
HEARD AND RESERVED ON 31/10/2018 COMING ON
FOR PRONOUNCEMENT THIS DAY, THE COURT MADE
THE FOLLOWING:
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ORDER
Petitioner in CRP No.354/2018 is defendant No.11 and petitioners in CRP No.357/2018 are defendants 4 and 5 in O.S.No.164/2017 are before this Court under Section 115 of CPC, assailing the order dated 22-06-2018, by which the applications I.As.No.6 and 7 filed under Order VII Rule 11(d) of CPC, on the file of Principal Senior Civil Judge and CJM, Mangalore is rejected.
2. Since common order dated 22-06-2018 rejecting I.As.No.6 and 7 filed under Order VII Rule 11(d) is questioned in both the Civil Revision Petitions, the same have been taken up together for disposal with the consent of learned counsel appearing for both the parties. For the sake of convenience, the parties would be referred to as per their ranking in the original suit.
3. Petitioners in both the revision petitions are defendants and respondent No.1 is plaintiff in 8 O.S.No.164/2017 filed for judgment and decree of partition of 'A' schedule property ('A' schedule property consists of 6 items totally measuring 1 acre 89 cents) by metes and bounds and for mesne profits. Plaint averments are to the effect that 'A' schedule properties are held by late Narayana Shetty. After the death of Narayana Shetty, 'A' schedule property devolved on his three children namely Rathi Shetty, Vittal Shetty and Sanjeeva Shetty and defendants 3 and 4. It is further stated that plaintiff and defendant No.1 and 2 are the heirs of Rathi Shetty, defendants 6 to 9 are heirs of Late Vittal Shetty and defendant No.10 is the daughter of late Sanjeeva Shetty. It is further averred in the plaint that the plaintiff had previously filed O.S.No.53/2015 seeking partition of 'A' schedule property and as the defendants promised to settle the dispute amicably, she withdrew the suit. Further it is stated, amicable settlement did not take place, which resulted in filing of present suit O.S.No.164/2017 for partition. 9
4. The defendants appeared before the Court and defendant No.11 filed I.A.No.6 under Order VII Rule 11(d) and defendants No.4 and 5 filed I.A.No.7 under Order VII Rule 11(d) of CPC requesting the Court to dismiss the suit as barred by principles of res-judicata contending that plaintiff had earlier filed O.S.No.53/2015 for partition and the same was dismissed as withdrawn unconditionally. The plaintiff filed objections contending that the cause of action for the earlier suit was entirely different and cause of action for partition is a continuous cause of action and continues till the properties are partitioned by metes and bounds. The trial Court, by its order dated 22-06-2018 rejected I.A.No.6 and 7 filed under Order VII Rule 11(d) of CPC which order is impugned in these revision petitions.
5. Heard the learned counsel for the petitioners and learned counsel for the respondent No.1. Perused the petition papers.
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6. Learned counsel for the petitioners submits that suit filed in O.S.No.164/2017 for partition of 'A' schedule property is not maintainable in view of the fact that the plaintiff had earlier filed suit in O.S.No.53/2015 inter alia seeking partition of 'A' schedule property which was withdrawn unconditionally. Further, it is submitted that the suit is also barred by principles of res-judicata as provided under Section 11 of CPC apart from hit by Order II Rule 2 of CPC. Learned counsel further contends that as the suit O.S.No.53/2015 is withdrawn unconditionally, Order 23 Rule 1(3) of CPC prohibits fresh suit on the same cause of action.
7. Per contra, learned counsel for the plaintiff submits that no partition has taken place till this day in respect of 'A' schedule property and cause of action for partition is a continuing cause of action, it continues until partition takes place by metes and bounds. As the cause of action for partition is a continuous cause of action every time 11 when the suit for partition is filed, it is filed on new cause of action on each occasion. Learned counsel for the plaintiff further submits that the principles of res-judicata would not apply to the present situation since no issue is decided in the former suit filed by the plaintiff.
8. Having heard the learned counsel for the parties and on perusal of petition papers, the only question which falls for consideration is whether the order passed by the trial Court on I.A.Nos.6 and 7 calls for interference?
9. It is an admitted fact that the plaintiff had filed O.S.No.53/2015 for partition which included 'A' schedule property also. The said suit came to be dismissed as withdrawn unconditionally. The present suit is filed for partition in respect of the 'A' schedule property which was also the subject matter of O.S.No.53/2015. Cause of action in a suit for partition is a continuous cause of action, which would be available until the properties are divided by metes 12 and bounds between the parties who are entitled for such partition. In the present suit also, admittedly partition has not taken place in respect of 'A' schedule property. Suit averments would indicate that the plaintiff withdrew the earlier suit for partition on the assurance of the defendants that they would settle the dispute amicably. However, amicable settlement did not take place, which resulted in filing of the present suit.
10. This Court, while dealing with the situation of dismissal of partition suit under Order 9 Rule 8 of CPC in a case reported in 2013(1) KCCR 672 (DB) S.K.LAKSHMINARASAPPA SINCE DECEASED BY HIS LRs. v/s SRI.B.RUDRAIAH AND OTHERS held that such dismissal would not put an end to joint status of the property and joint status continues. Paragraphs 45 and 46 of the judgment read as follows:
"45. Rule 9 of Order 9 is based on sound public policy that no defendant should be vexed twice on the same cause of action. The only effect of an order made under 13 Order 9, Rule 8 is that a fresh suit based on the same cause of action is precluded by the provisions of Order 9, Rule 9 of the Code. It will not apply to the cases where the cause of action is recurring or continuous. A suit for partition dismissed for default under Order 9, Rule 8 of CPC does not bar a subsequent suit for partition. The reason is that the right to enforce a partitions is a continuous right, which is a legal incident of a joint tenancy and which enures so long as the joint tenancy continues. Cause of action is continuous in partition cases which subsists so long as the property is held jointly. In other words, the joint owner can file a suit for partition, until partition is actually effected, irrespective of the fact whether earlier suits for such partition were dismissed for default or withdrawn or an earlier decree for partition was not acted upon.
46. The plaintiff suit is for partition of certain joint family property which was jointly held at the time of the previous suit and continues to be joint upto now. When it was dismissed for non-prosecution, the plaintiffs applied for restoration of the suit, but their application was dismissed on the ground that they have failed to establish sufficient cause for their non-appearance in the Court. The dismissal of the suit for default would not put an end to the joint status of the property. The effect of such dismissal is the joint status continues.14
The property continues to be joint. The co-sharers right to seek partition of the property held jointly, continues. It is a recurring cause of action. The cause of action comes to an end only after partition of the property held in joint, is severed and the share to which each co- sharer is entitled to, is put in possession of their respective share. Therefore, the order of dismissal for default passed under Order 9, Rule 8 CPC, would not have the effect of filing yet another suit for partition on the same cause of action."
11. In the suit on hand also, as the partition has not taken place, joint status of the property continues and joint status has not come to an end. Further contention of the learned counsel for the defendants that the suit is barred by res-judicata is also liable to be rejected for the reason that no issue or dispute is decided in the previous suit namely O.S.No.53/2015. Res-judicata as defined under Section 11 of CPC would be applicable only where issues raised have been heard and finally decided. No issue has been heard and decided in O.S.No.53/2015 to attract the principles of res-judicata.
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12. Learned counsel for the defendants/petitioners submitted that O.S.No.53/2015 was dismissed as withdrawn unconditionally, as such, Order 23 rule 1(3) of CPC would bar fresh suit. As held above, in a suit for partition, cause of action is a continuous cause of action and it is a recurring one until properties are partitioned by metes and bounds. Under Order 23 Rule 1(3) of CPC fresh suit is barred on the same cause of action. In a suit for partition, it is a recurring cause of action and continuous one, Order 23 Rule 1(3) would not be applicable and for the same reason Order II Rule 2 is also not applicable.
13. This Court in a case reported in ILR 1979 KAR 1180 in the case of THIMMAPPA SHAMBU BHATTA AND ANOTHER v/s RAMACHANDRA KRISHNA BHATTA AND ANOTHER had an occasion to examine whether Order 23 Rule 1(3) of CPC is applicable to a suit for partition and this Court held that Order 23 Rule 1 of CPC would not come in the way of filing subsequent suit for partition since cause of 16 action is a recurring one. But observed that there should be acceptable explanation to offer for filing subsequent suit for partition. In the instant case, the plaintiff has stated in the plaint itself that the previous suit was withdrawn on the assurance of the defendants that they would settle the dispute amicably, which did not take place.
14. For the foregoing reasons, the question framed is answered in the negative and the civil revision petitions fail, accordingly they are rejected.
SD/-
JUDGE mpk/-* CT:SK