Judgment:
(Prayer: This Writ Petition filed under Articles 226 and 227 of the Constitution of India praying to call for the records in O.S.No.8523/2002 pending on the file of XXXVIII Additional City Civil and Sessions Judge, [Court Hall No.39] Bangalore and to set aside the orders dated 26.9.2013 passed on I.A.No.9 in O.S.No.8523/2002 vide Annexure-A.)
1. The facts of the case are as follows:
2. The first respondent herein, is said to have filed a civil suit for partition and separate possession of the suit schedule properties, in case no.OS 8532/2002 on the file of the Court of the Principal City Civil and Sessions Judge, Bangalore. The present petitioners are said to be arraigned as Defendants no.1 and 2 therein. The other respondents 2 to 7 herein are the other defendants in the suit.
It is the case of the petitioners that the following is the genealogical tree of the joint family :
(âChartâ)
3. The parties are referred to by their rank assigned to them before the trial court for the sake of convenience.
4. It transpires that after the death of Gangappa as on 4.2.1988, the fourth defendant, Meena Manjunath, is said to have filed a suit in OS 5240/1988 for partition and separate possession of 1/35th share in a cinema hall known as "Ashoka Talkies" situated at Frazer Town, Bangalore. It is said that when the above suit was pending, the very defendant had filed another suit against her mother, brother and sisters, in OS 154/1989 before the same court, seeking partition and separate possession of the remaining items of the joint family properties.
In the mean while, the second defendant is said to have filed a petition seeking grant of letters of administration in respect of a will said to have been executed by late Gangappa, in case no.CP 11/1992, before this Court in its Probate jurisdiction. The same is said to have been returned to be filed before the City Civil Court, to be tried as a testamentary suit and it transpires that it was accordingly numbered as case no.OS 1645/1995, on the file of the City Civil Court Bangalore.
It is further stated, that the two suits filed by the fourth defendant and the third suit filed by the Second defendant were clubbed and a common trial was said to have been held. It is stated that the two suits in OS 5240/1988 and OS 154/1989 filed by the fourth defendant were decreed as prayed for and the suit filed by the Second defendant is said to have been dismissed by a common judgment and decree dated 27.7.1998.
The third defendant being aggrieved by the judgment and decree is said to have preferred an appeal before this court in its appellate jurisdiction, in RFA 34/1999 and this court is said to have modified the decree in so far as the allotment of shares was concerned and the appeal was disposed of on 23.11.2008.
It is in the above background that the plaintiff, who is one of the male members of the family, and who was a party in the earlier suits, has filed the latest suit in OS 8523/2002 seeking partition and separate possession of the suit properties. Even though the suit refers to the earlier suits, it is significant that except one item of the suit properties all the other items shown in the suit schedule are already ordered to be divided by metes and bounds . The one item which is an exception, it is claimed, is not part of the joint family properties. It is claimed to be the self acquired property of the second defendant. And such acquisition was after the severance of the joint family status.
It is sought to be demonstrated with reference to the several items of the properties which were the subject matter of the earlier suits and the present suit as being one and the same. That in so far as item no.4 is concerned, the same having been purchased as on 9.11.1998 by the second defendant out of his own funds after the joint family properties were divided, is not at all available for partition. The second defendant has sought to produce the sale deed in this regard.
It is hence contended that the subject matter of the suit being substantially and directly in issue in the earlier suits, between the same parties, the trial court was precluded from proceeding with the suit and hence the application under Section 11 of the Code of Civil Procedure 1908 (Hereinafter referred to as the 'CPC', for brevity), having been filed, the court below was not justified in having rejected the same and hence, the present writ petition.
5. The learned counsel for the petitioner, Shri S.Subash, while reiterating the above sequence of events, seeks to draw attention to tabular statements to graphically demonstrate that the present suit was clearly barred in law and that the impugned order is unreasonable and without reference to the glaring circumstances apparent on the face of it.
6. The learned counsel for the plaintiff, on the other hand, seeks to justify the order of the trial court and would point out that the court below having come to the conclusion that the question as to whether the subject matter of the suit was substantially and directly in issue, between the same parties in earlier suits which have attained finality, is a mixed question of fact and law and could be decided only after an enquiry and could not be decided summarily on an application.
7. The tabular statements furnished by Shri Subash, certainly give the impression that the subject matter of the suit has been directly and substantially involved in the earlier suits. However, the court below having opined that on a mere perusal of the judgment in the earlier suits it could not be decided that the suit was barred by res judicata, when it was a mixed question of fact and law, is an order passed by the court below exercising its power of judicial discretion.
It is a general rule that the issue of res judicata should not ordinarily be tried as a preliminary issue. It has been expressed by the Apex court that the best method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleading of their previous suits, and then to find out as to what had been decided by the judgments which operate as res judicata. (See: Mohammed Salie v. Mohammed Hanifa, AIR 1976 SC 1569). It is for this purpose that the pleadings in the earlier suits must be brought on record and it should be examined that the facts stated in the earlier judgments were adequately eloquent to conclude that the issues arising between the parties have been conclusively decided, to hold that the suit was barred by res judicata.
8. In the instant case on hand, it is noticed that the respondent has contended in the objections to the application of the petitioners, on which the impugned order is passed, that there is no issue framed by the court below as to whether the suit was barred by res judicata. If this be so - the endeavour of the petitioners should be to firstly ensure that the trial court frames an issue in this regard, for otherwise the point would not arise for consideration by the court below, especially since the court has opined that the question as to whether the suit is barred by res judicata in the present case on hand is a mixed question of fact and law. This would preclude the petitioners from canvassing the contention as a pure question of law, if disputed facts are not clarified with reference to material evidence, in the first place.
Consequently, it cannot be said that the court below has committed any error of jurisdiction or in law, to warrant interference by this court in its writ jurisdiction. The case of the petitioners that the suit is barred by res judicata, is however, not finally decided by the trial court and it is a contention that is available to the petitioners to be urged on the merits of the suit.
Accordingly, the writ petition is dismissed, without prejudice to the case of the petitioners.