- 1 - RFA No. 1817 of 2007 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE G BASAVARAJA REGULAR FIRST APPEAL NO. 1817 OF 2007 BETWEEN: SRI KUDLI SRINGERI MAHASAMSTANAM KUDLI SHIMOGA DISTRICT REPRESENTED BY ITS MATHADHIPATI SHRIMAD JAGADGURU HIS HOLINESS, SRI SACHIDANAND VALUKESHWAR SWAMIJI (SRI SHARADA MAHAPEETHAM AND SRIMAD JAGADGURU SRI SRI SRI VIDYABHINAV VIDYARANYA SWAMIJI OF KULDI SAMSTHANAM, NOW RESIDING AT NO.100, OPP: TO LALBAGH WEST GATE, R.V.ROAD, BANGALORE 560027. …APPELLANT (BY SRI. KESHAV M. DATAR, ADV.) AND: 1 . SRI RAMSHISHUVIHAR, NO.216/1, 5TH CROSS, 5TH MAIN ROAD, CHAMRAJPET, BANGALORE - 560018, BY ITS SECRETARY SRI. C.K.VENKATRAO. 2 . CHAMRAJPET SRI RAM MANDIR ASSOCIATION (REG.) REP. BY ITS HON. SECRETARY SRI. N. BINDUMADHAVA RAO, NO.114, 5TH MAIN, 6TH CROSS, CHAMARAJPET, BANGALORE-560018. - 2 - RFA No. 1817 of 2007 3 . SRI DR. M. R. RAMANNA PRESIDENT, CHAMARAJPET, SRI RAM MANDIR, NO.114, 5TH MAIN, 6TH CROSS, CHAMARAJPET, BANGALORE-560018. …RESPONDENTS (BY SRI. N.R. NAGARAJ & ASSOCIATES, FOR R2, R1 - SERVED AND UNREPRESENTED, V/O DATED 21.03.2012, APPEAL AGAINST R3 IS ABATED.) THIS REGULAR FIRST APPEAL IS FILED U/S.96 OF CPC AGAINST THE JUDGMENT AND DECREE DT.21.4.2007 PASSED IN O.S.NO.15441/2002 ON THE FILE OF THE V ADDL. CITY CIVIL JUDGE, BANGALORE (CCH-13), DISMISSING THE SUIT FOR PERMANENT INJUNCTION AND POSSESSION. THIS RFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 07.02.2025 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT, PRONOUNCED THE FOLLOWING: CAV JUDGMENT (PER: HON'BLE MR JUSTICE G BASAVARAJA) The appellant-plaintiff has preferred this appeal under Section 96 of Code of Civil Procedure against the Order dated 21st April, 2007 passed by the V Additional City Civil Judge, Bangalore in OS No.15441 of 2002, on Issue No.4 which pertains to the principles of res judicata. 2. The parties in this appeal are referred to as per their rank and status before the trial Court. - 3 - RFA No. 1817 of 2007 Facts of the case: 3. Plaintiff had filed suit on 11th March 2002, seeking permanent injunction in respect of suit property against the defendants. During the pendency of the suit, after appearance of defendants, on 07th January 2005 an Application in IA.7 was filed by the plaintiff under Order VI Rule 17 of Code of Civil Procedure, 1908 to amend the plaint seeking to pass decree directing defendants to vacate and handover the vacant possession of the suit property to the plaintiff. The said Application was resisted by defendants by filing statement of objections. 3.1. Upon hearing argument on both sides, Application IA.7 filed under Order VI Rule 17 of the Code of Civil Procedure came to be allowed vide order dated 15th June 2005. Accordingly, the amended plaint was also filed. Thereafter, defendants have filed their additional written statement to the amended plaint. 3.2. Brief facts, as per amended plaint, are that the suit property has been given to plaintiff under registered Gift deed dated 27th July 1960 effected between the plaintiff and Sri K.L. Krishna Bhagavathar, which was registered in the office of the - 4 - RFA No. 1817 of 2007 Sub-Registrar, Bangalore. At that time, His Holiness Sri Sachchidananda Bharati Swamiji was heading the plaintiff. In the suit property, the owner Sri K.L. Krishna Bhagavathar had built Sri Rama Mandira and on northern side, and a small Shishuvihara was established. Further, some structures like kitchen and go-down were also constructed by the said donor only. The said property was gifted under gift deed dated 27th July, 1960 and to run the said Shishuvihara and the Primary School, a body is registered under Mysore Societies Registration Act. The donor given up authority to the plaintiff in respect of administrative and supervisory powers. Therefore, it is the plaintiff which has got the authority regarding administrative powers, to supervise the said Shishuvihara and the Primary School. 3.3. This being the situation, defendant No.1 filed Original Suit No.287 of 1961 against the plaintiff contending that the suit property is a public premises and is likely to be used for Defendant No.1-Society only, by excluding education object. The Defendant No.1 obtained ex-parte decree without enquiring as to whether such prayers are to be granted or not under law and also as to whether there is jurisdiction to grant relief vested or not. In the said Suit, in the order sheet dated - 5 - RFA No. 1817 of 2007 04th February 1964, it is recorded that “on perusal of the plaint and affidavit, the suit is decreed”. Thus, the order is blindly passed without looking into documents, without evidence or without reasons as required under the provisions of Code of Civil Procedure. The said decree is without judgment, is not a speaking order and is also in violation of Sections 33and 2(9) of the Code of Civil Procedure and hence, the decree is illegal, null and void and without jurisdiction. 3.4. The plaint averments in OS No.287 of 1961 disclose that defendant No.1 is disputing the capacity to gift the property under Gift Deed dated 27th July, 1960. No relief has been prayed either for declaration or cancellation of Gift Deed dated 27th July 1960. Thus, the said Gift Deed is in force till today. The defendant No.1 has to run Shishuvihara in permissive capacity and nothing else. The defendant No.1 has not acquired right of ownership in the suit property. Further, the defendant No.1 had not acquired right, title and interest over the suit property except to manage Shishuvihara under the supervision of plaintiff. Defendants cannot dispute the said Gift Deed and its directives. Further, defendants cannot exercise right of ownership over the suit property, in the sense, the defendants are not having right of alienation, demolition - 6 - RFA No. 1817 of 2007 and construction in respect of suit property as their own. At no point of time, defendants are vested with rights of ownership over the suit property. Therefore, defendants have not acquired right, title and interest in the suit property except to manage the Shishuvihara as per the Gift Deed. 3.5. It is further stated that after disposal of Misc. No.801 of 1987 on 27th March 1999, defendants appear to have assumed themselves as if they are owners of the suit property. Defendants 1 and 2, inter se, gone to the extent of entering their names in the Corporation records. Further, defendants 2 to 4 have given representation to the Corporation of City of Bengaluru for change of name from defendant No.1 to defendant No.2 in respect of suit property, illegally, behind the back of the plaintiff. The Bangalore City Corporation, appears to have changed the name for tax purpose without noticing formalities regarding legal transfer. Mere change of entry in the Corporation records, cannot confirm any right, title interest between defendants in favour of defendant No.2. Plaintiff is not a party to the same. At the most, it is a clear case of fraudulent act in creating false entries in Corporation records and hence, the same is not binding on the plaintiff. The suit property is a holy property consisting of Shishuvihara, Sri Rama - 7 - RFA No. 1817 of 2007 Mandira and a Primary School. In view of the dispute pending, the plaintiff had not disturbed the running of Shishuvihara and the Primary School. The plaintiff had made arrangements to look after Sri Rama Mandira. But now, recently, defendants have been obstructing transactions of Sri Rama Mandira under the guise of above facts. The defendants have nothing to do with the transactions and management of Sri Rama Mandira in the suit property, as it is only the plaintiff which is looking after it. The defendant No.1 was allowed to manage Shishuvihara, which was and is in the suit property, under the supervision of plaintiff. Therefore, the defendant No.1 cannot throw away the management of the said education institution in the suit property to defendants 2 to 4 according to whims and fancies illegally, and also without the consent of the plaintiff. 3.6. It is submitted that even in the decree passed in Original Suit No.287 of 1961 by the City Civil and Sessions Judge Bangalore, the defendant No.1 in suit OS No.15441 of 2002, has only got the right of use of the suit property and the plaintiff has got right to secure peaceful possession. Now, defendants 2 to 4 are claiming that the defendant No.1 having merged with defendant No.2, they have got right over the suit property. The alleged merger of Societies is not in accordance - 8 - RFA No. 1817 of 2007 with the provisions of the Karnataka Societies Registration Act, 1960 and Rules 1961. Hence, defendants 2 to 4 have no valid right, title or interest to continue in possession of the suit property and to put up permanent structure on it. 3.7. The cause of action for this Suit arose on 07th January, 2002 when defendants started to demolish and to put up new construction in the suit property. On all these grounds, it was sought for permanent injunction against the defendants from demolishing the existing structure in the suit property and restraining to put up any construction in the suit property, as the defendants are not owners of the suit properly. It was also prayed for issue of permanent injunction against the defendants restraining them from interfering with management and transactions of Sri Rama Mandira in the suit property and to pass decree, directing the defendants to vacate and handover vacant possession of the suit property to the plaintiff. On all these grounds, it was sought to decree the suit. 3.8. Defendant No.2 has filed written statement and also additional written statement in which it is stated that the suit is not maintainable at all on law or on facts. Doctrine of res judicata is squarely attracted in view of the judgment and - 9 - RFA No. 1817 of 2007 decree passed in Original Suit No.287 of 1961 between the same parties in respect of same subject matter and hence the suit is liable to be dismissed on this ground alone. The plaintiff is incompetent to institute the suit. The trial Court has not framed any issue and none of the prayers sought for, can be granted by the Court. The verification made by the plaintiff is not in accordance with law and plaint has not been signed and verified as acceptable to the judicial proceedings. Hence it is contended that the plaint is liable to be rejected. The suit for bare injunction against the defendants is not maintainable without the relief for declaration. The plaint itself is liable to be rejected on uncertainty of ownership of the Mutt and its properties. It is admitted that defendant No.1 had filed suit in OS No.287 of 1961. The mutation had been in the name of defendant No.1 ever since the assessment came to be made by the Bengaluru City Corporation, which subsequently, exempted from paying the tax under Section 110 of Karnataka Municipal Corporation Act, 1976. Thus, the statement to the effect that the plaintiff Junior Swamiji came to know as to earlier judgment and decree, is far from truth. The statement imputing allegations of collusion and cheating, is beyond the - 10 - RFA No. 1817 of 2007 scope of this suit and the plaintiff-Institution has to agitate before a separate Forum if it has got any grievance. 3.9. It is contended that the donor Sri K.L. Krishna Bhagavathar had no right to gift. The alleged Gift Deed dated 27th July 1960 is void and non-est in the eye of law. The parties to Suit OS No.287 of 1961 is bound by the decree passed therein unless the same is set aside by a competent Forum. The defendant No.1 herein had clearly taken a contention that the Gift Deed dated 27th July 1960 through which the plaintiff seeks to claim some right in the suit property, is void ab-initio as donor-Sri K.L. Krishna Bhagavathar, had no personal right in the suit property and hence could not have executed the Gift Deed as an individual. As the so called Gift Deed had been executed by an incompetent person who had no right and title in himself to the suit property, could not pass on the same to the donee therein. Hence, the Gift Deed which is void ab-initio and would not vest the plaintiff with any right or title over the suit property and the same need not be declared as void or cancelled again. 3.10. Further, it is stated that the suit property was gifted for specific purpose of education, philanthropic and - 11 - RFA No. 1817 of 2007 charitable activities under the agies of Chamarajapet Sri Rama Mandira by virtue of a Gift Deed dated 02nd May 1954, registered in the office of the Sub-Registrar, Bangalore city on 06th May 1954 as No.275/54-55 of Volume 1339 at Pages 96- 98 of Book-1 executed jointly by Smt. Nanjamma and Sri Lakshmipathaiah. The recitals of the donors clearly state that a site measuring East-West 175 feet and North-South 108 feet out of the entire property bearing number 48 (new number 54), 5th Main, Chamarajapet, Bangalore, was gifted for a specific purpose, which was received by one Sri K.L. Krishna Bhagavathar. The purpose was specifically mentioned, viz. to serve the general public, who are interested in the devotional and social activities under the auspicious umbrella of Lord Sree Rama. This fact of gift of the suit property to the public was very well known to the donee Sri K.L. Krishna Bhagavathar himself. This specific knowledge of the absence of personal right, title and interest has been made known by Sri K.L. Krishna Bhagavathar through binnavattale dated 21st April 1957 given to the then Minister of Finance, Government of Mysore. In the said binnavattale, Sri K.L. Krishna Bhagavathar describes himself as a Manager of Sri Rama Mandira and the property has been donated by the donors for the purpose of Sri Rama - 12 - RFA No. 1817 of 2007 Mandira, to run Shishuvihara and other activities. This, Sri K.L. Krishna Bhagavatar himself knew, that he had no personal right, title or interest over the suit property. Hence, gift made by him to the plaintiff discreetly is a void document. It is contended that the defendant No.1 was compelled to file a suit in OS No.287 of 1961 as a registered Society against the donor Sri K.L. Krishna Bhagavathar, and also the plaintiff. The relief sought for in the Suit is as under: "a) That the Plaintiff has a right of user of the entire premises described in the plan 'B' including the portions A, B, E, F and P, Q, S, R, that is to say, of the entire premises A,B,C,D, in the plan, for the benefit of the members of the public at large. b) That the defendants 1 and 2 have absolutely no personal right in any part of the said premises. c) That the order of the City Magistrate in Cr.Mis.501/60 dated 21-2-1961 is void. d) That defendants 1 and 2 be restrained by a permanent injunction from interfering with the right of user by plaintiff of the premises as set out in clause (a) supra. e) That defendants 1 and 2 be directed to secure peaceful possession of the said right of user by the plaintiff. - 13 - RFA No. 1817 of 2007 f) That defendants be directed to pay the plaintiff costs of the suit." 3.11. The trial Court decreed the suit ex-parte on 04th February 1964. Against this, plaintiff preferred miscellaneous petitions. All of them were dismissed affirming the decree passed in OS No.287 of 1961. Neither the plaintiff nor his donor had any right, title or interest over the suit property. The defendant No.1 passed Resolution on 03rd May 1992. Sree Rama Shishuvihara itself merged into Chamarajapet Sri Rama Mandira Association. Thus, all the assets and liabilities got merged into the Chamarajapet Sri Rama Mandira Association, arraigned as the defendant No.2. The defendant No.1 is no more in existence consequent upon the merger. The Bangalore City Corporation has transferred the suit property from Sree Rama Shishuvihara to Chamarajapet Shri Rama Mandira Association in its records. Thus, there is no change of hands, but only the change in name. Further, it is submitted that the defendant No.2 is a registered Association under the Karnataka Societies Registration Act, running Shishuvihara, Primary School and also High School under its administration and management. Classes are being conducted in the suit premises and are recognised by the Government of Karnataka. In fact, - 14 - RFA No. 1817 of 2007 both Shishuvihara and the Primary School are fully aided and High School is partly aided. As the number of students increased to 850, because of lack of space, classes could not be run in a conducive atmosphere. Hence, by raising donations from the public and also from the paltry donations made from the parents of the students, 4-5 classrooms are being added by replacing the existing structure which had a tiled roof. The entire student, community of the Institution, hale from lower strata of the society who cannot afford to join expensive modern educational institutions. The construction of classrooms is with the sole intention of giving a better accommodation to poor students. If this act of providing basic education to the poor students is considered as illegal and a cheating act, then nothing in the life could be considered as just and legal. There is no cause of action for the suit. 3.12. It is also contended that the relief sought for is hit by Law of Limitation. Admittedly, in the suit the plaintiff had sought for possession through amendment dated 28th June 2005 by virtue of order dated 23rd June 2005. The possession and the title has been denied as early as in 1961, that is beyond 44 years. Admittedly, for possession of immovable property or any interest based thereon, an alleged title - 15 - RFA No. 1817 of 2007 governed by Article 65, stipulate the period of Limitation to be twelve years. The plaintiff has lost its right to seek for the relief of possession. The court fee paid by the plaintiff is grossly insufficient and improper. Further, denying all other averments made in the plaint, as well as in the amended plaint, it was sought for dismissal of the suit with exemplary costs. 4. Based on the pleadings, the trial Court framed four issues on 02nd July 2003, and after amendment of the plaint, the trial Court has framed additional four issues. Among them, the trial Court heard the arguments on Issue No.4 and dismissed the suit. Being aggrieved by the order passed by the trial Court on Issue No.4, plaintiff has preferred this appeal. Submissions advanced on behalf of the Appellant: 5. Sri Keshav M. Datar, learned Counsel appearing for the Appellant-plaintiff, submitted that the trial Court has committed an error in passing the order on Issue No.4 without recording evidence. Initially, the respondent had filed an application for rejection of the plaint which came to be rejected by the trial Court vide order dated 18th February 2003, and the same was confirmed in Civil Revision Petition No.1478 of 2003, wherein the Co-ordinate Bench of this Court observed that - 16 - RFA No. 1817 of 2007 there are no grounds to reject the plaint under Order VII Rule 11 of the CPC. The trial Court has once again taken up the issue of res judicata as a primary issue and dismissed the suit on that ground alone. The trial Court has committed an error in holding that the present suit is barred by principles of res judicata. 5.1. Learned Counsel submitted that the present Suit was initially filed for permanent injunction and the said Suit has been subsequently amended seeking for possession of the property. The earlier Suit and the findings thereon have no relevance to the present suit for the reason that the suit is filed against Sree Rama Shishuvihara in OS No.287 of 1961 by the defendant only for permanent injunction. The present suit is filed for possession and permanent injunction, and this suit is based on the title and the plaintiff is entitled to claim possession of the property, as the plaintiff is the rightful owner of property by virtue of registered gift deed dated 02nd May 1954 and the same is not challenged by defendants. Plaintiff in OS No.287 of 1961 has not produced any document to show that it is the owner of the suit property and the order dated 04th February 1964 passed in OS No.287 of 1961 is an ex-parte decree, is passed without evidence and is not a speaking order. - 17 - RFA No. 1817 of 2007 This suit OS No.287 of 1961 is only for bare injunction against the defendants and is not for declaration of title. The cause of action and issues involved are different. The different cause of action between the same parties, do not fall within the scope of res judicata. The principles of res judicata do not bar the new suit, if it involves a distinct cause of action, even if it is between the same parties. 5.2 Further, the learned Counsel would submit that the ingredient of Section 11 of Code of Civil Procedure, 1908 are not applicable for the reason that no issues are framed in OS No.287 of 1961 and no evidence is recorded and that there is no speaking order. The same is an ex-parte decree, and hence he sought for setting aside the order impugned passed by the trial Court and remand the matter to the trial Court to dispose of the case on the remaining issues. To substantiate his argument, he has relied upon judgment of Hon'ble Supreme Court in the case of PANDURANGA RAMACHANDRA MANDALIK v. SHANTIBAI RAMACHANDRA GHATGE AND OTHERS reported in 1989 SUPP(2) SCC 627. The learned Counsel has also produced copy of the entire order sheet pertaining to OS No.287 of 1961 on the file of First Munsif at Bangalore. - 18 - RFA No. 1817 of 2007 Submissions advanced on behalf of the Respondents: 6. As against this, Sri N.R. Nagaraj learned Counsel appearing for Defendant No.2, would submit that the alleged gift deed said to have executed by donor on 06th May 1954 and another Gift deed dated 27th July 1960 and also the rectification deed dated 22nd August 1960 as to the delivery possession, are not sustainable under law for the reason that there is no reference as to acceptance of Gift Deeds dated 06th May 1954, and 27th July 1960 executed by the donor, as required under Section 122 of the Transfer of Property Act, 1882. Defendants have obtained decree against the plaintiff in OS No.287 of 1961. The plaintiff has filed several miscellaneous applications for restoration of the ex-parte decree passed against plaintiff. All miscellaneous applications were dismissed. Finally, the Misc.No.801 of 1987 was also dismissed on merits. Plaintiff has not preferred any appeal against the order passed in Misc.No.801 of 1987. Hence, the principle of res judicata is applicable, as the plaintiff, instead of preferring an appeal, has filed a suit. The subject matter of the property in question and the subject matter of the property in OS No.287 of 1961, are one and the same. The trial Court has properly appreciated the material placed on record and dismissed the suit as the suit is - 19 - RFA No. 1817 of 2007 barred in view of doctrine of res judicata. To substantiate his arguments learned Counsel has relied upon the following decisions: 1. R. UNNIKRISHNAN AND ANOTHER v. V.K. MAHANUDEVAN AND OTHERS (AIR 2014 SCW 596); 2. M NAGABHUSHANA v. STATE OF KARNATAKA AND OTHERS (AIR 2011 SC 1113); 3. RAJINDER KUMAR v. KULDEEP SINGH (2014 AIR SCW 1121); 4. SRI ARALAPPA v. SRI JAGANNATH (ILR 2007 KAR. 339) 7. Having heard the arguments on both sides and on perusal of material is placed before the Court, the following points would arise for my consideration: 1. Whether the trial Court is justified in dismissing the suit on the ground that the suit is barred by principles of res judicata? 2. What order? 8. My answer to the above points are: Point number one: in the negative; Point number two: as per final order 9. I have carefully gone through the materials placed before this court. Before appreciating the material on record, it - 20 - RFA No. 1817 of 2007 is relevant to mention here as to the provisions of Section 11 of Code of Civil Procedure, 1998. The same reads thus: "11. Res judicata. - No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I.- The expression "former suit" shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto. Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III.- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall for - 21 - RFA No. 1817 of 2007 the purposes of this section, be deemed to have been refused. Explanation VI.- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating . Explanation VII.-- The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VIII.- An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised." 10. The doctrine of res judicata is a legal doctrine that prevents the same case from being tried again by the same parties. It is based on the idea that no one should be forced to go through the same legal process twice for the same issue. The Hon'ble Supreme Court, in the case of SATHYADHYAN GOSHAL v. DEORAJIN DEBI reported in AIR 1960 SC 941, has - 22 - RFA No. 1817 of 2007 observed that the principle of res judicata applies when the cause of action, the issues and the parties are the same. However, it also emphasises that different cause of action between the same parties do not fall within the scope of res judicata. In the said case, the Supreme Court has held that res judicata does not bar a new suit, if it involves a distinct cause of action, even if it is between the same parties. The Hon'ble Supreme Court, in any number of cases, has clarified that the principles of res judicata applies only in the matters if the two suits are substantially the same and if the parties are same, but the cause of action or the subject matter is different, the principle of res judicata does not apply. 11. The Hon'ble Supreme Court, in the decision of PANDURANG RAMCHANDRA MANDLIK (supra), at paragraph 19 of the judgment, has observed as under: "19. Admittedly the appellants' application was decided ex parte. It is true that ex parte decrees operate to render the matter decided res judicata, and the defendants' failure to appear will not deprive the plaintiff of the benefit of his decree. But in the case of a suit in which a decree is passed ex parte, the only matter that can be 'directly and substantially in issue' is the matter in - 23 - RFA No. 1817 of 2007 respect of which relief has been claimed by the plaintiff in the plaint. A matter in respect of which no relief is claimed cannot be 'directly and substantially in issue' in a suit in which a decree is passed ex parte though the court may have gone out of its way and declared the plaintiff to be entitled to relief in respect of such matter. In the instant case applying the above principle the order having been passed ex parte, assuming the doctrine of res judicata applied, it could be only to the extent of the appellants having been not entitled to possession at the relevant time; and it could not be extended logically to the issue whether the defendants were tenants under the Act." 12. Considering the facts and circumstances of the above case and keeping in mind Section 11 of Code of Civil Procedure, as also the decisions of Hon'ble Supreme Court stated supra, I am inclined to grant a limited indulgence in the matter as under for the following: Reasons: 13. Admittedly, the suit in OS No.287 of 1961 on the file of the First Munsiff at Bangalore, is filed by Shri Rama Shishuvihara against the defendant - 24 - RFA No. 1817 of 2007 Sri K.L. Krishna Bhagavathar and another on 11th March 1961, seeking following relief: "a) for declaration that the plaintiff has a right of user of the entire premises described in the plaint "B" to the plan including the portion ABEF and PQSR of the entire premises in ABCD in the suit plan for the benefit of the public. b) that the defendants have no personal rights in the said premises. c) that the order of City Magistrate in Cr.Mis.501/60 dt 21.2.61 is void. d) for permanent injunction to restrain the defendants from interfering with the right of user by plaintiff. e) that the defendants be directed to secure peaceful possession of the said right of user. f) for costs." 14. The trial Court has passed ex-parte decree on 04th February 1964, which reads as under: "perused the plaint and affidavit. The suit is decreed exparte as follows:- a) The plaintiff has a right of use of the entire premises described in the plan 'B' including the portions A B E F and P, Q, S, R that is to sky, of the entire premises ABCD in the plan, for the benefit of the members of the public at large; - 25 - RFA No. 1817 of 2007 b) The defendants 1 and 2 have absolutely no personal right to any part of the said premises. c) The order of the City Magistrate in Cr.Mis.501/60 dated 21.2.64 is void. d) The defendants 1 and 2 are restrained by means of a permanent injunction from interfering with the right of use by plaintiff of the premises as set out in clause (a) supra. e) The defendants 1 and 2 are directed to secure peaceful possession of the said right of user to the plaintiff. f) The defendants should pay costs of the suit to the plaintiff Advocates fee Rs.15/-." 15. It is not in dispute that the defendant in OS No.287 of 1961 had filed Misc. No.38 of 1964 to set aside the ex-parte decree passed in OS No.287 of 1961 and the same was dismissed for default. Misc. No.358 of 1966 was filed seeking to set aside the dismissal order in Misc. No.38 of 1964. MA No.62 of 1983, allowed on 08th December 1986, thereby Misc. No.55 of 1968 was restored. The said Misc.No.55 of 1968 was allotted a new number Misc.No.801 of 1987. In the said miscellaneous, evidence was recorded. The same was dismissed on 27th March 1999. The plaintiff-appellant has not challenged the order passed in Misc.No.801 of 1987, however, - 26 - RFA No. 1817 of 2007 filed a suit for permanent injunction against the defendants, restraining defendants from demolishing the existing structure in the suit property and restraining from putting up any new construction in the suit property, as defendants are not owners of the suit property and also restraining defendants from interfering with enjoyment and transactions of Sri Rama Mandira in the suit property and to pass decree directing the defendants to vacate and handover the vacant position of suit property to the plaintiff. 16. 16. A plain reading of the of the plaint in OS No.15441 of 2002 filed by the present plaintiff, makes it crystal clear that the plaintiff has sought for possession of suit property based on title. Consequently, has also sought for permanent injunction against the defendants. The plaintiffs in OS No.287 of 1961 have not sought for declaration of title in respect of the suit property against defendants, whereas the present suit No.15441 of 2002 filed by the plaintiff is for possession and permanent injunction in respect of the suit property. 17. During the pendency of the suit, a prayer was made to amend the plaint. The defendants who are respondents, have filed Application under Order VII Rule 11 of Code of Civil - 27 - RFA No. 1817 of 2007 Procedure for rejection of plaint that the suit is not maintainable as the suit is barred by principles of res judicata and estoppel. That application was rejected by the trial Court. Being aggrieved by the said order dated 18th February 2003, the present respondents have preferred Civil Revision Petition before the court in No.1478 of 2003, and the same was dismissed by order dated 12th August 2004, wherein the co- ordinate Bench of this Court has observed as under: "It is well settled that while considering the application for rejection of the plaint under order 7 Rule 11, only the averment made in the plaint has to be looked into and the defence of the defendants and the averment made in the written statement and the documents produced by the defendant would not be material while considering the application under order 7 rule 11 CPC. However, in the present case, the Trial Court having regard to the above averment made in the plaint has come to the conclusion that the question as to whether the plaintiff is estopped from filing the suit and as to whether the suit is barred by principles of resjudicata, which is fact and law have to be gone in to during the trial. In the said suit and the averment made in the plaint by itself does not make out a ground to show that the suit itself is barred in view of the - 28 - RFA No. 1817 of 2007 averment made in the plaint itself. The learned counsel appearing for the petitioner has taken through the averment made in the plaint in the present suit OS No:15441/02, and it is clear from the averment made in the plaint itself, that the said averments by itself do not make out any bar in filing the present suit for bare injunction against the defendants to restrain them from demolishing the existing structures in the suit property and restrain them from putting up new construction in the schedule property as the cause of action of the plaintiff is based upon the fact that the earlier proceedings have gone on even after the death of the Swamiji on 6.11.1970 and on the basis of the gift deed dt.27.7.1960 wherein the schedule property has been gifted in favour of the plaintiff. These are the questions of facts that are to be established during trial and wherefore, the Trial Court has rightly held that no ground is made out for rejection of plaint under order 7 Rule 11 CPC and the contention of the defendant has to be gone into during Trial and the said finding of the Trial Court cannot said to be suffering from any error of jurisdiction, illegality or material irregularity to call for interference in this revision. Accordingly, I hold that there is no merit in this revision and pass the following order: - 29 - RFA No. 1817 of 2007 The Civil Revision Petition is dismissed. However, the Trial Court is directed to dispose of the suit expeditiously and not later than 8 months from the date of receipt of this order or from the date of production of the certified copy of this order or whichever is earlier." 18. Though the Co-ordinate Bench of this Court held that no ground is made for rejection of plaint under Order VII Rule 11 of Code of Civil Procedure and the contention of the defendant has to be gone into during trial and the finding of the trial Court cannot be said to be suffering from any error of jurisdiction, legality or material irregularity that call for interference in this Revision and accordingly dismissed the Revision Petition filed by the defendants. The trial Court has ignored the direction issued by the Co-ordinate Bench of this Court. 19. The reasons assigned by the trial Court in this regard is that the question of possession was purely factual and therefore, the trial was necessary. But, after amending the plaint, when the plaintiff sought for possession, the whole circumstance changed. Here, since the possession is based on title, unless the title is established, the plaintiff will not be entitled for possession since the question of title was decided - 30 - RFA No. 1817 of 2007 against the plaintiff in OS No.287 of 1961, obviously there remains nothing to be decided in this suit once again. This finding of the trial Court is apparently contrary to the facts of the case for the reason that the plaintiff has not sought for relief of declaration on title. The Suit is for bare injunction. The trial Court has not given any finding as to the title of the suit property. No issues were framed in the suit, no evidence recorded, the trial Court has passed ex-parte decree in OS No.287 of 1961 without passing any considered order. However, the trial Court has observed that the question of title was decided against the plaintiff in OS No.287 of 1961, is not correct and proper. Therefore, the same is not sustainable. 20. Prior to amendment of the plaint as to seeking of possession of the suit property, the trial Court has held that the suit is maintainable and accordingly Application filed under Order VII Rule 11 of the Code of Civil Procedure by the defendants was rejected. The same was confirmed by the Co- ordinate Bench of this Court in Civil Revision Petition No.1478 of 2003. After amendment of the plaint, the plaintiff sought for possession of suit property based on title and permanent injunction against the defendant. Therefore, the nature of the suit, cause of action for the suit and cause of action for the - 31 - RFA No. 1817 of 2007 earlier Suit No.287 of 1961, are entirely different. ,Therefore, in view of the decision of Hon'ble Supreme Court, in the case of SATHYADHYAN GOSHAL (supra) that different cause of action between the same parties do not fall within the scope of res judicata and the principles of res judicata does not bar new suit, if it involves new and distinct cause of action, even if it is between the same parties. Therefore, the nature of the suit, cause of action for the suit and cause of action for the earlier OS No.287 of 1961 are entirely different. 21. The subject matter of the present suit has not been directly and substantially in issue in the former suit i.e. OS No.287 of 1961 between the same parties. 22. Therefore, the principle of res judicata, as contemplated under Section 11 of Code of Civil Procedure, 1908, is not applicable to the case on hand. On examination of the entire material placed on record, I am of the considered opinion that the defendants have failed to establish that the suit is barred by principles of res judicata. Accordingly, the order impugned passed by the trial Court is not justified and sustainable in law. The decisions relied upon by the learned Counsel for the respondent-defendants will not enure to the - 32 - RFA No. 1817 of 2007 benefit of defendants, as the facts of the present case and the facts the cases on which reliance is placed, are entirely different. Accordingly, I answer point number one in the Negative. 23. For the aforesaid reasons and discussions, I proceeded to pass the following: O R D E R i) Appeal is allowed; ii) Order dated 21st April, 2007 passed on Issue No.4 in OS No.15441 of 2002 by the V Additional City Civil Judge, Bangalore, is set aside; iii) Matter is remitted back to the trial Court to dispose of the same on remaining issues, in accordance with law; iv) Parties are put to notice to appear before the trial Court on 05th March, 2025; - 33 - RFA No. 1817 of 2007 v) The trial Court is requested to dispose of the case as expeditiously as possible and in any event not later than one year from the date of appearance of parties. Costs made easy. Sd/- (G BASAVARAJA) JUDGE lnn