WRIT PETITION NOS & 15452/2013 (GM-CPC)

Transcription

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25 th DAY OF APRIL 2015 BETWEEN : BEFORE THE HON BLE MR. JUSTICE N.KUMAR WRIT PETITION NOS & 15452/2013 (GM-CPC) 1. Sri B.Abdul Rehaman Khan Aged about 66 years R/at No.636, K.M. Street Daira, 2. Sri B.Kaleel Ulla Khan Aged about 56 years, R/at No.1364/2, Near Sathanoor Circle, Islampura Mohalla, 3. Sri B.Abdul Ameed Khan Aged about 54 years Ahamed Nagar, Sathnoor Road Cross Behind Kaveri Water Pumphouse...PETITIONERS (By Sri S.Raju, Adv.)

2 - 2 - AND : 1. Sri B.Abdul Azeez Khan Aged about 62 years 2. Sri Mukthar Ali Khan Aged about 46 years Nos.1 & 2 are r/at No.636, K.M. Street, Daira, 3. Smt.Khurseed Banu W/o C.M.Khaleem Aged about 68 years, D.No.1515, Nizami Chowk Cross 4. Smt.Azez Banu W/o Buran Khan Aged about 64 years, R/at No.36, 1 st Cross, J.H.B.C.S. Layout, Kadirenahalli, Bangalore Smt.Anwar Banu W/o Nazeer Ahmed Aged about 59 years R/at Syedasiraj Mohalla

3 Smt.Akthar Banu W/o M.Azeiruddin Aged about 60 years No.640, K.M. Street, Daira, 7. Smt.Gowar Banu W/o Syed Rohiel Aged about 47 years, R/at No.11/2, 7 th Cross, Lakksandra Bangalore RESPONDENTS (By Sri M.S.Rajendraprasad, Sr. Counsel for Sri M.S.Mukarram, Adv. for R-1 & 2.).... These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India with a prayer to quash the impugned order dated passed on the preliminary issues 2 and 3 by the learned Senior Civil Judge and JMFC Channapatna in O.S.No.25/2012 vide Annx-H and thereby to dismiss the suit of the R1 and 2 in O.S.No.25/2012. These Writ Petitions coming on for preliminary hearing in `B group, this day, the Court made the following: O R D E R The defendants have preferred these writ petitions challenging the order passed by the Trial Court holding

4 - 4 - the preliminary issues 2 and 3 in the negative and posting the case for evidence on other issues, in the suit. 2. The plaintiff filed the suit for partition and separate possession of his legitimate share in the plaint schedule property. The defendant filed the written statement; issues have been framed. The case of the defendant is that the plaintiff had earlier filed a suit in O.S.No.47/2007 for the same relief. A memo for dismissal came to be filed therein on stating that the suit was settled outside the Court. Accordingly, the said suit came to be dismissed. 3. Therefore, it is contended that a second suit for partition is not maintainable. The learned counsel for the petitioner has invoked Order 2 Rule 2 of CPC to contend that the suit is not maintainable and also argued that since the dispute between the parties was

5 - 5 - settled in the earlier suit, the order of dismissal of O.S.No.47/2007 operates as resjudicata. 4. The Trial Court framed issues 2 and 3 as preliminary issues in O.S.No.25/2012 as under: (2) Whether the defendant Nos. 1 to 3 prove that the suit is hit by Order II Rule 2 of CPC as contended in the written statement? (3) Whether the defendant Nos. 1 to 3 prove that the suit is hit by principles of res judicata as contended in the written statement? 5. The Trial Court, on consideration of the rival contentions, held that the cause of action for the earlier suit and the cause of action for present suit are totally different, as such, the contention that the suit is hit by Order II Rule 2 of CPC is without any substance. 6. Admittedly, earlier suit was not heard and decided on merits. Unless an earlier suit is heard and

6 - 6 - decided on merits, the second suit would not be barred by resjudicata. Therefore, that issue was also held against the defendants. Aggrieved by the said order, the present writ petitions are filed. 7. I have heard the learned counsel for the parties. As is clear from the records, the earlier suit for partition was dismissed as withdrawn on a memo filed by the plaintiffs reporting that the dispute was settled outside the Court. Now in the present suit, it is alleged that in terms of the compromise, the plaintiffs have not been given their legitimate share; and therefore, the suit property continues to be a joint family property and there is no severance of status. 8. A second suit for partition and separate possession is maintainable. At any rate the cause of action is different from the earlier suit. Therefore, Order II Rule 2 of CPC has no application as rightly held by the Trial Court. The earlier suit was dismissed as

7 - 7 - settled out of Court on a memo. There was no trial and there was no finding on any issues. In other words, the case was not decided on merits. In that view of the matter, Section 11 of CPC is also not attracted as rightly held by the Trial Court. There is no merit in these petitions. Accordingly, petitions are dismissed. Sd/- JUDGE SPS