Smt. Anasuya vs Smt. Putalabai (Since Deed) by her LRs.

A.N. Venugopala Gowda, J.—Smt. Putalabai instituted O.S. No. 61/1985 on the file of the Munsiff at Jamkhandi on 19.06.1985 to pass a decree of declaration and grant consequential reliefs in respect of 5 acres 32 guntas of land in Sy. No. 117 situated Janawad village of Jamkhandi taluk in Bagalkote district against Dundappa and Vithappa. The defendants were placed ex parte and the suit was decreed on 25.09.1985. The defendant Dundappa filed C.Misc.No.5/1986 under Order 9, Rule 13 of CPC'' to set aside the stud decree. The said petition was dismissed. E.P. No. 72/1987 filed by Smt Putalibai was withdrawn on account of filing of E.P. No. 28/1996. Misc.No. 1/1987 filed by Vittappa, the other defendant, to set aside the decree dated 25.09.1985 passed in O.S.No.61/1985 was also dismissed. In E.P. No. 28/1996 satisfaction was recorded and the petition was closed on 09.01.1999.

O.S. No. 156/1999 filed by Dundappa and Vittappa to pass decree of partition and separate possession was dismissed on 25.7.2008 by the Principal Civil Judge (Sr. Dn), Jamkhandi.

The appellants instituted O.S. 174/2000 in the court of Principal Civil Judge (Jr.Dn.) at Jamkhandi, to pass a decree of declaration that the decree passed in O.S. No. 61/1985 dated 25.9.1985 is null and void and the same as having been obtained by fraud and for a declaration that they are entitled to �th share in the suit land and for grant of consequential reliefs. The suit was contested by defendants by filing written statement. Issues were raised with reference to the pleadings. Issue Nos. 3 to 6 were treated as preliminary issues and without conducting a trial, issue No. 3 was answered in the negative and issue Nos. 5 and 6 were answered in the affirmative. It was held that the suit is hit by doctrine of res judicata i.e. on account of judgment and decree passed in O.S. 61/1985 on 25.9.1985. R.A. No. 76/2003 filed by the plaintiffs having been dismissed on 06.12.205 by the Principal Civil Judge (Sr.Dn.), Jamkhandi, this second appeal was filed to set aside aforesaid decrees and for grant of the consequential reliefs.

Keeping in view the rival contentions of the record of the case, the substantial question of law for consideration is:

"Whether the courts below were justified in passing impugned decrees when a trial of the matter has not taken place?"

Heard the learned Counsel on both sides and perused the records. It is necessary to record the rival contentions and answer the same, since the appeal is liable to be allowed on a short ground, which goes to the root of the matter.

In O.S. No. 174/2000, following issues were raised for determination:

Whether the plaintiffs prove that the decree passed in OS No. 61/85 dated 25.9.85 is null and void?

Whether the plaintiffs prove that plaintiffs are entitled to �th share in the suit land?

Whether the defendant No. 1 proves that this court has no pecuniary jurisdiction to try this suit?

Whether the court fee paid is incorrect, if so what is the correct fee?

Whether the suit is not maintainable as contended in Para-17?

Whether the suit of the plaintiff is hit by doctrine of res judicata?

Whether the plaintiffs are entitled to the relief sought for?

What order or decree?

Indisputedly, trial in respect of issue Nos. 3, 4, 5 and 6, which were treated as preliminary issues was not held. By merely hearing the learned advocates and perusing the pleadings the suit was dismissed on 15.03.2003. Said decree when questioned by the plaintiffs was affirmed by dismissal of R.A. 76/2003 on 6.12.2005 by the Principal Civil Judge (Sr.Dn), Jamkhandi.

In Alamengada Muddappa & others v. Alamengada Kuttappa and others, ILR 2010 Kar 5179, considering an identical situation it was held that, res-judicata is a mixed question of fact and law and the same should be proved by producing the copies of pleadings and issues framed in the earlier suit by the party, who has raised the plea. The defendants having not proved during trial by producing evidence that principles of res judicata in terms of Section 11 of CPC are attracted to the suit, the appeal was allowed and case was remanded to the trial court for consideration in accordance with law.

In the instant case, there being no dispute that the trial has not taken place in O.S. No. 174/2000, the courts below have committed error in holding that the suit is hit by the doctrine of res judicata. View taken by the courts below in the matter, as per the impugned judgments being contrary to the law laid in the above said decision, which squarely applies, I have no other option than to allow the appeal and set aside the impugned judgments and decrees and remand the case to the trial court for decision afresh.

In the result, appeal is allowed and the impugned judgments and decrees are set aside. O.S. No. 174/2000 is restored to the file of Principal Civil Judge (Jr.Dn), Jamkhandi, for decision afresh.

Both the parties are directed to appear before trial court on 25.06.2016 and receive further orders.

All the contention of both parties are left open.