B. Kanyakumari vs P. Leelavathamma and Others

B. Veerappa, J.—The defendant filed the above writ petition against the order dated 09.03.2015 on Addl. Issue Nos. 4 and 5 made in O.S. No. 202/2014 holding that the Trial Court is having territorial jurisdiction to try the suit and suit is not barred by principles of res judicata.

The 1st respondent who is the plaintiff in the Trial Court has filed the suit for partition and separate possession in respect of the suit schedule properties contending that all the suit schedule properties are ancestral joint family properties and she is entitled for 1/5th share in the suit properties etc.,

Except the 3rd defendant, other defendants have not filed the written statement and in the written statement she has stated that the Trial Court has no territorial jurisdiction to try the suit in respect of the suit schedule properties. All the suit properties are situated at Adoni but only one property i.e. CTS No. 4647/87 situated at Manyan Timmasagar Taluka, Hubli and suit is barred by res judicata and admittedly the suit schedule properties are the joint family properties and she also admitted the genealogy made in the plaint and sought for dismissal of the suit.

Issues were framed on 18.12.2014. Thereafter, the matter was posted for evidence of the plaintiff In view of the specific defence taken in the written statement by the 3rd defendant, Issue Nos. 4 and 5 were treated as preliminary issues and after hearing of both the parties, the Trial Court by impugned order dated 09.03.2015 has held that the 3rd defendant has failed to prove the suit which is hit by principles of res judicata. Against the said order, the present writ petition is filed.

I have heard the learned Counsel for the petitioner.

Sri. P.I. Pawate, learned Counsel for the petitioner has contended that all the suit schedule properties except one property, are out side of the State of Karnataka. Therefore, the Court at III Addl. Senior Civil Judge, Hubballi has no jurisdiction to entertain the present suit and also contended the present suit filed by the plaintiff is barred by res judicata. Hence, the order passed by the Trial Court is liable to be quashed and he sought to allow the above writ petition.

I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the petitioner.

It is not in dispute that earlier suit filed by the plaintiff in O.S. No. 84/2013 at Senior Civil Judge, Gangavathi for partition and separate possession and subsequently, she has filed the application to withdraw the suit with an opportunity to file a fresh suit. The same was permitted by an order dated 26.03.2014 on L.A. No. 2. Therefore, the plaintiff has filed the present suit at Hubballi. It is also not in dispute that the plaintiff filed O.S. No. 202/2014 for partition and separate possession in respect of the suit schedule properties contending that all the suit schedule properties are ancestral joint family properties and she is entitled for 1/5th share. The 3rd defendant/present petitioner has not denied that the suit schedule properties are the joint family properties but she contended that she is also entitled share in the said properties and she also admitted the genealogy mentioned in the plaint. The only defence urged in the written statement by the 3rd defendant that, this Court has no jurisdiction to try the suit since all the suit schedule properties are outside of the Karnataka except one property which is at Hubballi.

Considering the written statement and additional issues, the Trial Court recorded a specific finding that the 3rd defendant has not proved that the Court at Hubballi has no territorial jurisdiction to try the suit and also held that the 3rd defendant has failed to prove that the suit is hit by principles of res judicata. Accordingly, the Trial Court has held that the Court at Hubballi has territorial jurisdiction to try the suit. Insofar as the 1st contention raised by the counsel for petitioner in the present case, it is worthwhile to mention here Section 17 of Code of Civil Procedure which reads as under:

"17. Suits for immovable property situate within jurisdiction of different Courts.--

Where a suit is to obtain relief respecting or compensation for wrong to, immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction may portion of the property is situate:

Provided that, in respect of the value of the subject-matter of the suit, the entire claim as cognizable by such Court."

In view of the provisions stated above, any party may institute a suit in any Court within the local limits of whose jurisdiction any portion of the property is situate. Admittedly, in the present case, it is not disputed by the 3rd defendant that some of the suit schedule properties i.e. item Nos. 8 and 9 of the plaint schedule properties situated at Hubballi i.e. within the jurisdiction of Hubballi Court and item Nos. A and B are situated at Gangavati taluka. Item No. 1C is situated at Sirur park, Hubballi and house property item No. 2 situated at Karnul Adoni. Item No. III situated at Adoni. Therefore, the contention of the learned Counsel for the petitioner that all the properties are outside of the State of Karnataka cannot be accepted. Some of the items situated at outside of the Karnataka and some of the items are within the Karnataka i.e. within the jurisdiction of Hubballi. Therefore, in view of the provisions of Section 17 of Code of Civil Procedure, the Court at Hubballi has territorial jurisdiction to try the suit. Therefore, the 1st contention cannot be accepted and the same is negated. Insofar as the 2nd contention is that the present suit filed by the plaintiff is barred by res judicata cannot be accepted for the simple reason that the plaintiff filed earlier suit O.S. No. 84/2013 before the Senior Civil Judge. Subsequently, it was withdrawn with liberty to file a fresh suit and the same was allowed by the Court by its order dated 26.03.2014 on I.A. No. 2. Therefore, the present suit is filed within the jurisdiction of Hubballi. This said fact was suppressed in the present writ petition.

Therefore, the contention that the suit is barred by res judicata cannot be accepted since it was not decided on merits. Considering the entire material on record, the Trial Court has passed the impugned order holding that none of proceedings it is decided whether plaintiff is having the share in the schedule property and none of the cases have been decided on merit and also held that the ratio laid down in the rulings relied by the 3rd defendant cannot be made applicable to the case on hand. Accordingly, the Trial Court held that the suit filed by the plaintiff has got territorial jurisdiction to try the suit at Hubli and the suit is not barred by res judicata. The same is in accordance with law and the petitioner has not made out any case to interfere with the order passed by the Trial Court.

Accordingly, the petition is dismissed.