The principle of res judicata involves a mixed question of law and fact, requiring examination of evidence, and cannot be the sole ground for rejecting a plaint without due consideration.

JUDGMENT :

B.V. Nagarathna, J.

Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.

2. Appellant is the plaintiff in Original Suit No.4507 of 2017. Said suit has been filed by the appellant seeking the following reliefs:

i. Pass Decree and Judgment declaring that the plaintiff is the absolute and actual owner of the plaint schedule property.

ii. Pass Decree and Judgment of permanent injunction restraining the defendants, their men, agents, servants or any person/persons acting or claiming through or under them from interference with the peaceful possession and enjoyment of the plaintiff over the schedule property.

iii. For Decree and Judgment directing the defendants to pay the cost of the present suit.

iv. For such other reliefs deemed fit and proper to this Hon'ble Court from the facts and circumstances of the case, in the interest of the justice and equity.

SCHEDULE

All that part and parcel of the non agricultural immovable residential house site property bearing site No.27, Assessment No.4, bearing Khatha No.633, formed in Sy. No.4, situated at Laggere Village, Yashavanthapura Hobli, Bangalore North Taluk, measuring to an extent of East to West 40 feet North to South 30 feet bounded by:

East : Site bearing No.26

West : Site bearing No.28

North : Road

South : Muneshwara temple in site bearing No.34

3. In response to the said plaint, the defendants appeared and filed their written statement. They also filed an application, namely I.A. No.II under Order VII Rule 11 of the Code of Civil Procedure, 1908, (C.P.C.) seeking rejection of the plaint on the ground that the suit was barred by the principles of res judicata. By order dated 28-9-2018, said application has been allowed and the plaint has been rejected. Hence, this appeal.

4. We have heard learned counsel for the appellant and learned counsel for caveator-respondent Nos.1 to 3 and perused the material on record.

5. Appellant'S counsel contended that, initially, the respondents had filed Original Suit No.3574 of 2001 on the file of the XXV Additional City Civil and Sessions Judge, Bengaluru, seeking relief of permanent injunction against the appellant herein in respect of site No.27 in Survey No.4 measuring 30 X 40 feet situated at Laggere Village, Yeshwanthapura Hobli, Bengaluru North Taluk, Bengaluru. Said suit was decreed by judgment and decree dated 22-6-2012, against which, the appellant herein had preferred Regular First Appeal No.1521 of 2012. The said appeal was dismissed by judgment dated 14-6-2017. However, liberty was reserved to the appellant herein to file a suit before the appropriate Court in respect of site No.34 in survey No.4 measuring 40 x 30 feet. It is on the basis of said liberty, the appellant has filed Original Suit No.4507 of 2017. In which, the respondents herein filed application under Order VII Rule 11 of C.P.C. seeking rejection of the plaint.

6. Learned counsel for the appellant contended that the trial Court has rejected the plaint based upon the reasoning of this Court in Regular First Appeal No.1521 of 2012. That the approach of the trial Court is wholly incorrect. He submitted that the trial Court could not have rejected the plaint on the ground that the plaint was hit by principles of res judicata. That the principle of res judicata involves mixed question of law and fact, which requires not only examination of the plaint but also evidence. It cannot be the ground to reject the plaint. In support of his contention, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of VAISH AGGARWAL PACHAYAT v. INDER KUMAR AND OTHERS, (2015) AIR SC 3357; judgment of this Court in the case of HANMANTHRAYA v. DEVIKAMMA, 2019 ILR(Kar) 529 and another judgment in the case of SANGRAMAPPA v. S. GANGAMMA, 2019 3 KarLJ 348. He contended that impugned order be set aside and the matter be remanded to the trial Court for consideration of the suit in accordance with law.

7. Per contra, learned