- 1 - HC-KAR NC: 2025:KHC:47916 CRP No. 191 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA CIVIL REVISION PETITION NO. 191 OF 2023 BETWEEN: 1. SRI.K.R.NAGARAJU SHETTY S/O KANDUR RATHNAIAH SHETTY AGED ABOUT 59 YEARS 2. K R KRISHNAMURTHY S/O KANDUR RATHNAIAH SHETTY AGED ABOUT 64 YEARS BOTH ARE R/AT YELDUR VILLAGE AND HOBLI SRINIVASAPURA TALUK KOLAR DISTRICT - 563 135 …PETITIONERS (BY SRI. PRASHANTH P.N., ADVOCATE) AND: 1. SRI. T.A. SRIRAM BABU S/O ADINARAYANA AGED ABOUT 59 YEARS R/AT YELDUR VILLAGE AND HOBLI SRINIVASAPURA TALUK KOLAR DISTRICT - 563 135 …RESPONDENT (RESPONDENT IS SERVED AND UNREPRESENTED) Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:47916 CRP No. 191 of 2023 THIS CRP IS FILED UNDER SECTION 115 OF CPC, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 30.11.2021 IN O.S.NO.275/2013 PASSED ON THE PRELIMINARY ISSUE HOLDING THAT THE SUBSEQUENT SUIT FILED BY THE PLAINTIFF IS NOT BARRED BY THE PRINCIPLES OF RESPONDENT-JUDICATA BY HON'BLE PRL. CIVIL JUDGE AND JMFC, SRINIVASPURA, PRODUCED HEREWITH, FOR BEING CAPRICIOUS, ARBITRARY, PERVERSE, BIASED AND FOR BEING DELIVERED WITHOUT PROPER JUDICIAL REASONING ON THE ISSUE MUCH AGAINST TO THE SETTLED PRINCIPLE OF LAW AND ETC. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL ORDER 1. Heard Sri. Prashanth P.N., learned counsel for the petitioners. Respondents are served and unrepresented. 2. Defendants in O.S.No.275/2013 are the revision petitioners challenging the Order passed by the learned Trial Judge dated 30.11.2021 dismissing the application on the preliminary issue res judicata. - 3 - HC-KAR NC: 2025:KHC:47916 CRP No. 191 of 2023 3. Facts of the case which are utmost necessary for disposal of the present revision petition are as under: 4. Plaintiff/respondent had earlier filed a suit in OS No.257/2002. The said suit is now pending before this court in a review petition in Review Petition No.456/2022 whereby, Order passed in RSA No.730/2009 is sought to be reviewed. 5. When the matter stood pending, another suit came to be filed by the very same plaintiff in OS No.275/2013 by the very same plaintiff for the almost similar relief. 6. Defendants entered appearance and filed written statement. 7. Learned Trial Judge raised necessary issues and one issue that was raised based on the rival pleadings is whether the suit is barred by res judicata. Defendants insisted that the said issue to be tried as a preliminary issue. Therefore parties were heard on the said issue and - 4 - HC-KAR NC: 2025:KHC:47916 CRP No. 191 of 2023 by impugned Order, learned Trial Judge has recorded a finding that suit is not barred by res judicata and proceeded with the suit. 8. Validity and correctness of the said order is assailed in the present revision petition by the defendants. 9. Sri Prashanth, learned counsel for the revision petitioner, reiterating the grounds urged in the revision petition contended that till the review petition is decided on merits, the present Civil Revision Petition cannot be decided as it may have a contradictory result on the merits of the matter. 10. He would also contend that when the Regular Second Appeal came to be withdrawn by the plaintiff without seeking leave to file a fresh suit, filing of the fresh suit per se amounts to res judicata which has not been properly considered by the learned Trial Judge and dismissing the contention of the defendants that suit is - 5 - HC-KAR NC: 2025:KHC:47916 CRP No. 191 of 2023 barred by res judicata has resulted in miscarriage of justice and sought for allowing the revision petition. 11. In the light of the arguments put-forth on behalf of the petitioners, this Court perused the material on record meticulously. 12. On such perusal of the material on record, admittedly the plaintiff withdrew RSA No.730/2009. In other words, suit that was filed by the very same plaintiff in O.S.No.257/2002, suit dismissed. 13. When such is the factual aspect, filing of the second suit was called in question by the defendants on the ground of res judicata. 14. In the first place, question of a suit being barred by res judicata cannot be treated as a preliminary issues as is found in Order XIV of the Code of Civil Procedure. - 6 - HC-KAR NC: 2025:KHC:47916 CRP No. 191 of 2023 15. It is settled principles of law that only the jurisdiction and Court fee which are to be tried as the preliminary issue as is contemplated under Order XIV of the Code of Civil Procedure. Obviously, the other issues are a mixed question of law and fact. 16. Therefore, very trying of the res judicata as a preliminary issue, whether a suit is barred by res judicata as a preliminary issue itself has resulted in miscarriage of justice. 17. Nevertheless, since it is the defendants who insisted that the issue with regard to res judicata is to be tried as preliminary issue, having suffered an order, have preferred the present revision petition. 18. According to Sri. Prashanth, a review petition is filed to review the withdrawal of the second appeal by the plaintiff, which is now pending in RP No.456/2022. He would also contend that even assuming that the withdrawal of the RSA is reviewed, then also, the question - 7 - HC-KAR NC: 2025:KHC:47916 CRP No. 191 of 2023 of res judicata at the most can be an issue that is to be tried in the suit. 19. In the aforesaid circumstances, this Court is of the considered opinion that the finding recorded by the learned trial judge without recording the evidence of the parties, needs to be set-aside and issue with regard to the suit hit by res judicata to be tried along with the main suit would meet the ends of justice. 20. Accordingly, following order: ORDER (i) Civil Revision Petition is allowed. (ii) The impugned Order on the preliminary issue dated 30.11.2021 passed in OS No.275/2013 is hereby set-aside and the issue with regard to the suit is hit by the principles of res judicata should be tried along with the other issues in the main suit, subject - 8 - HC-KAR NC: 2025:KHC:47916 CRP No. 191 of 2023 to the orders in the pending RP No.456/2022 by the Co-ordinate Branch of this Court. Sd/- (V SRISHANANDA) JUDGE SNC ct:SG List No.: 1 Sl No.: 25