THIS W.P IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN OS NO.849/2019 PENDING ON THE FILE OF V ADDITIONAL CIVIL JUDGE (JR.DIVISION) AT TUMAKURU AND SET ASIDE THE ORDER DATED 22.04.2021 IN IA NO.3 VIDE ANNEXURE - A AND ALLOW IA NO.3 UNDER SECTION 10 CPC FILED BY THE PETITIONER AND ETC.,

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

ORAL ORDER

This writ petition is filed challenging the order dated 22.04.2021 in OS No.849 of 2019 by the V Additional Civil Judge, Tumkur (hereinafter referred to as 'Trial Court').

Smt.Chethana Manjunath, learned counsel for Sri.B.S.Manjunath, learned counsel appearing for the petitioner submits that respondent has filed a suit in OS.No.84 of 2019 along with her sister, seeking partition and separate possession of 1/3 share in each of the suit schedule properties against the petitioner herein and later the respondent alone has filed OS No.849 of 2019 against the petitioner herein for permanent injunction with regard to the Site No.22, which is the subject matter in previous suit. Hence, the petitioner who was the defendant filed an application under Section 10 of the Code of Civil Procedure, 1908 (for short, 'CPC') to stay the latest suit, which came to be rejected solely on the ground that issues involved in both the suits are different.

It is submitted that the parties to the suit are one and the same. The property involved in both the suits are also the same. Hence, the latest suit cannot be considered and he seeks to stay the latest suit by allowing the petition.

Though the respondent is served, there is no representation.

It is to be noticed that the respondent and her sister-Smt.T.N.Harini have filed OS No.84 of 2019 for the relief of partition and separate possession with regard to the several properties, which includes movable as well as immovable properties claiming to be joint family properties.

It is to be noticed that suit property No.1 is a house constructed in Site No.22, situated at Ward No.35 of Tumkur Corporation, Mahalakshmi Layout, Tumkur. The said suit was filed on 16.06.2019. The petitioner is contesting the said suit by filing written statement. It is to be noticed that the respondent herein filed another suit in OS 849 of 2019 against the petitioner herein, seeking permanent injunction with regard to the house property in Site No.22 measuring 60' x 40' and Site No.23 measuring 58' x 46' situated at Ward No.35 of Timkur Corporation limits, Mahalakshmi Layout, Tumkur.

It is to be noticed that the properties in the latest suit are two sites i.e. site Nos.22 and 23 and they are the properties in earlier suit in OS No.849 of 2019. In my considered view, the issue and subject matter involved between the same parties is already before the Trial Court in OS No.84 of 2019, which is a earlier suit for partition. Hence, filing the latest suit on the similar issue cannot be allowed to continue. In my considered view, issue involved in both the suits are substantively one and the same.

Hence, I proceed to pass the following.

ORDER

i) Writ Petition is allowed.

ii) Impugned order dated 22.04.2021 passed by V Additional Civil Judge, Tumkur in OS No.849 of 2019 is set aside. Consequently, Interlocutory Application filed by the petitioner under Section 10 of CPC is allowed.