The principles of res judicata bar a second suit when the cause of action is the same and a previous suit has been adjudicated.

CAV ORDER

(PER: HON'BLE MR JUSTICE R DEVDAS)

This Civil Revision Petition is filed under Section 115 of the Code of Civil Procedure , 1908, at the hands of defendants No.19 and 9 (a) to (c) in O.S.No.4866/2010, aggrieved of the impugned order dated 14.08.2024 whereby the preliminary issue ‘whether the suit of the plaintiff is hit by principles of res judicata’ was considered and dismissed.

2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court.

3. Facts in brief are that the plaintiff Smt.Kantamma filed O.S.No.4866/2010 seeking a judgment and decree in favour of the plaintiff for partition and separate possession of 1/5^th share in the suit schedule properties. Written statement was filed by the defendants-petitioners herein contending inter alia that the very same plaintiff had filed O.S.No.929/1991 before the City Civil Court, Bengaluru, seeking the very same relief of partition and separate possession arraying all the other family members as defendants. The suit was instituted on 11.02.1991 and a judgment was pronounced on 17.07.2003 dismissing the suit holding that the plaintiff who pleaded that the plaint schedule properties are acquired by her grandfather Lakkanna and her father Sri Kariyappa (defendant No.1 in the suit), but the plaintiff also admitted the fact that in a family partition effected on 20.09.1959, the suit schedule properties were partitioned and shares were allotted to the grandchildren of Sri Lakkanna who are none other than defendants No.2 to 5 in the suit. Therefore, it was held that during the lifetime of the plaintiff’s father viz., defendant No.1, the plaintiff has no right to seek partition.

4. After issues were framed and one of the issues being, ‘whether the suit of the plaintiff is hit by principles of res judicata as contended by 9^th defendant?”, at the instance of defendants No.9 and 19, the said issue was taken up as preliminary issue. Further, since the learned Judge of the City Civil Court held the preliminary issue in favour of the plaintiff, defendants No.9 and 19 are before this Court, assailing the said order dated 14.08.2024.

5. Learned Counsel for defendants No.9 and 19 submits that the learned Judge of the City Civil Court has fallen in grave error while rendering a finding that the judgment and decree passed in the earlier suit was not adjudicated, since no evidence was recorded and no documents were marked and therefore, the plaintiff was denied the right of audi alteram partem in O.S.No.929/1991. Learned Counsel submits that such a finding could not have been rendered by the learned Judge, since the judgment and decree passed in the earlier suit is a decree in law and if the plaintiff was aggrieved of such a decision, the plaintiff should have raised a challenge to the said decision. Learned Counsel submits that even if the plaintiff had so contended before the learned Judge of the City Civil Court, the learned Judge could not have accepted the said contention and the learned Judge is precluded from rendering such a finding which is clearly opposed to the settled position of law.

6. In this regard, learned Counsel for defendants has placed reliance on two decisions of the Apex Court viz., K.Arumuga Velaiah Vs. P.R.Ramasamy and Another 1, (2022) 3 SCC 757 andJamia Masjid Vs. Sri K.V.Rudrappa (Since Dead) By Legal Representatives And Others2, (2022) 9 SCC 225 Learned Counsel submitted that inK.Arumuga Velaiah the Apex Court has held that while determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one