- 1 - HC-KAR NC: 2025:KHC:47988 MSA No. 247 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MRS. JUSTICE M G UMA MISCELLANEOUS SECOND APPEAL NO. 247 OF 2025 (RO) BETWEEN: KUPPASWAMY DEAD BY HIS LRS LR'S ALREADY ON RECORD SMT. KANAMMA DEAD BY LR'S 1. SMT. SHARADAMMA, W/O VEERSWAMY AGED ABOUT 70 YEARS, RESIDING NEAR RAMADEVARAJU TEMPLE, NANGALI VILLAGE, MULBAGAL TALUK - 563 131 2. SMT. SAROJAMMA, W/O SUNDARAMURTHY, D/O LATE KUPPASWAMY, AGED ABOUT 70 YEARS, R/O DOOR NO. 14712, MARIYAPPA PALYA, 4TH MAIN, 3RD CROSS NEAR SUBRAMANYASWAMY TEMPLE, BENGALURU-560056 3. SRI. N.K. NAGARAJ S/O LATE KUPPASWAMY, AGED ABOUT 60 YEARS APPELLANT NO.1 TO 3 ARE ALL AGRICULTURIST, R/AT: NAGALI VILLAGE, BYRAKUR HOBLI, MULBAGAL TALUK - 563 131 …APPELLANTS Digitally signed by PRASHANTH N V Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:47988 MSA No. 247 of 2025 (BY SRI. THILAK ITTANGUR B.N., ADVOCATE AND SRI. JEEVAN GOPAL, ADVOCATE) AND: 1. SMT. KRISHNAVENI, D/O LATE GOPALAPPA, AGED ABOUT 72 YEARS AGRICULTURIST, R/AT: DHARABENDRE ROAD, NANGALI VILLAGE AND POST, BYRAKUR HOBLI, MULBAGAL TALUK - 563 131 2. SRI. G. SHIVA S/O LATE GOPALAPPA AGED ABOUT 49 YEARS, AGRICULTURIST. R/AT: DHARABENDRE ROAD, NANGALI VILLAGE AND POST, BYRAKUR HOBLI, MULBAGAL TALUK - 563 131 3. SMT G NAGALAKSHMI D/O LATE GOPALAPPA AGED ABOUT 40 YEARS, AGRICULTURIST R/O TANK ROAD, DOOR NO. 332 BANGARPET, KOLAR DISTRICT-563114 4. SMT. PARVATHAMMA, S/O LATE GOPALAPPA, W/O GOVINDARAJU, AGED ABOUT 37 YEARS, AGRICULTURIST. R/AT: DHARABENDRE ROAD, NANGALI VILLAGE AND POST, BYRAKUR HOBLI, MULBAGAL TALUK - 563 131 5. LAND ACQUISITION OFFICER, NATIONAL HIGHWAY-75 KOLAR SUB DIVISION 3RD MAIN ROAD, - 3 - HC-KAR NC: 2025:KHC:47988 MSA No. 247 of 2025 PALASANDRA LAYOUT, KOLAR - 563 101 …RESPONDENTS (BY SRI. VISWESWARAIAH, ADVOCATE FOR C/R1-4 (ABSENT) SRI. YOGESH .D. NAIK, AGA FOR R5) THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 18.09.2025 PASSED IN RA NO. 22/2019 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, MULBAGAL, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 17.06.2019 PASSED ON IA NO V IN OS NO.365/2014 ON THE FILE OF ADDITIONAL CIVIL JUDGE AND JMFC, MULBAGAL AND THE SUIT IN OS NO. 365/2014 ON THE FILE OF ADDITIONAL CIVIL JUDGE AND JMFC, MULBAGAL IS RESTORED TO THE FILE THIS MSA, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE M G UMA ORAL JUDGMENT Defendants in OS.No.365/2014 on the file of the learned Additional Civil Judge and JMFC, Mulbagal (hereinafter referred to as 'the Trial Court') are impugning the judgment and decree dated 18.09.2025 passed in RA No.22/2019 on the file of the learned Senior Civil Judge and JMFC, Mulbagal (hereinafter referred to as 'the First Appellate Court') whereunder, the appeal preferred by the plaintiff/respondent was allowed, and - 4 - HC-KAR NC: 2025:KHC:47988 MSA No. 247 of 2025 the suit was restored to file by setting aside the order passed by the Trial Court on the application filed under Order 7 Rule 11 of CPC, and allowing the application filed by the plaintiff/respondent under Order VI Rule 17 of CPC, permitting them to amend the plaint. 2. For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court. 3. Heard Sri. Thilak Ittangur B N., learned counsel for the appellants. It is stated that respondent No.5 is a formal party represented by Sri. Yogesh D Naik, learned Additional Government Advocate. Learned counsel for respondent Nos.1 to 4/caveat petitioner has remained absent and not addressed his arguments inspite of giving sufficient opportunity. Hence, has arguments is taken as NIL and perused the materials including the Trial Court records. 4. On perusal of the materials on record, it is found that respondent Nos.1 to 4 as plaintiffs filed OS.No.365/2014 against the defendants for partition and separate possession of the suit schedule properties by metes and bounds. The - 5 - HC-KAR NC: 2025:KHC:47988 MSA No. 247 of 2025 defendants have appeared before the Court and filed the written statement denying the contentions taken by the plaintiffs and contended that the plaintiffs are not entitled for any relief of partition and separate possession. 5. Defendants have filed an application under Order VII Rule 11 of CPC seeking rejection of the plaint. The said application was allowed and the plaint was rejected. Being aggrieved by the same, the plaintiffs preferred RA No.22/2019. During the pendency of appeal, the appellants/plaintiffs have filed the application under Order VI Rule 17 of CPC seeking amendment of the plaint. The First Appellate Court allowed the application and permitted the plaintiffs to amend the plaint and also allowed the appeal by restoring the suit for trial, by setting aside the order passed by the Trial Court on the application under Order VII Rule 11 of CPC. Being aggrieved by the same, the defendants are before this Court. 6. It is the specific contention of the defendants, who are the appellants before this Court that, the husband of plaintiff No.1 and father of plaintiff Nos.2 to 4 had filed similar suit in - 6 - HC-KAR NC: 2025:KHC:47988 MSA No. 247 of 2025 OS.No.417/2008 against the defendants before the Trial Court. The said suit came to be dismissed by holding that the plaintiffs admitted the oral partition between the parties about 50 years back. It is stated that the plaintiff in OS.417/2008 preferred an appeal in RA No.109/2011, and the said RA came to be dismissed during 2012. Being aggrieved by the same, the plaintiffs therein had preferred the second appeal in RSA No.1329/2012 and it is stated that the said appeal was dismissed as abated. 7. It is the contention of the defendants that a categorical finding was recorded in OS.No.417/2008 that there was already a oral partition between the parties in respect of all the schedule properties and the said judgment reached finality. Now in the present suit OS.No.365/2014, the plaintiffs are the wife and children of the plaintiff in the earlier suit, have filed a similar suit for partition in respect of very same schedule properties. Therefore, the defendants contended that the claim of the plaintiffs is barred by the principles of resjudicata. The Trial Court framed Issue No.2, which reads as under: - 7 - HC-KAR NC: 2025:KHC:47988 MSA No. 247 of 2025 2.Whether defendants prove that the suit of the plaintiffs is hit by the principles of resjudicata? 8. The First Appellate Court placed reliance on the decisions of the Hon'ble Apex Court in Pandurangan Vs. T Vs. T.Jayarama Chettiar and another1 to contend that the Hon'ble Apex Court has held that the plea of resjudicata cannot be decided in an application filed under Order 7 Rule 11 of CPC for rejection of the plaint but the parties have to lead their evidence to substantiate their respective contentions for and against the principles of resjudicata. The Court has also placed reliance on the decisions of the Hon'ble Apex Court in Sathyanath & Another Vs. Sarojamani2 to hold that plea of resjudicata cannot be decided as preliminary issue when it raises mixed issues of law and facts and the disputed questions of facts. Placing reliance on these decisions, the First Appellate Court held that the Trial Court could not have allowed the application filed under Order VII Rule 11 of CPC to reject the plaint. 1 2025 Live Law (SC) 698 2 2022 (7) SCC 644 - 8 - HC-KAR NC: 2025:KHC:47988 MSA No. 247 of 2025 9. When a specific Issue No.2 as referred to above regarding bar of suit principle of resjudicata is raised, I do not find any justification for the appellants to seek rejection of the plaint. Admittedly, the written statement is filed raising such a plea and the Court has framed the Issues. Now the parties have to lead their evidence in support of their respective contentions. Therefore, I do not find any illegality in the judgment passed by the First Appellate Court in setting aside the order of the Trial Court allowing IA under Order VII Rule 11 of CPC in rejecting plaint. Hence, the First Appellate Court is justified in restoring the suit for trial. 10. The next contention raised by the learned counsel for the appellants is that the First Appellate Court could not have allowed the application filed under Order VI Rule 17 of CPC, as the plaintiffs is in-fact replacing a new plaint by deleting his contentions raised in the original plaint. The copy of the application filed by the plaintiffs before the First Appellate Court is produced for perusal of the Court. The proposed amendment mentioned in the application runs into about four pages. From the cause title of the plaint till the prayer column each and - 9 - HC-KAR NC: 2025:KHC:47988 MSA No. 247 of 2025 every facts and particulars mentioned therein are sought to be amended. The contention raised that the properties are the joint family properties are sought to be deleted by claiming it to be self acquired properties. The description of the schedule properties are sought to be mentioned thoroughly. The plaintiffs proposes to delete the entire prayer column and to seek prayer for declaration that the plaintiffs are the absolute owners of the suit schedule properties as per the oral partition that was held between the Koppaswamy and Gopalappa. It is stated that there was no reference to such oral partition in the plaint that was filed initially. Even in the schedule appended to the plaint, the extent and the boundaries are sought to be amended thoroughly. 11. On going though the impugned judgment passed by the First Appellate Court allowing application filed under Order VI Rule 17 of CPC, the Court has focused its finding that since the trial before the Trial Court has not begun, there is no bar for allowing the amendment application. Now it is the contention of the appellant that amendment give rise to totally a new cause of action, which is already barred and there is no - 10 - HC-KAR NC: 2025:KHC:47988 MSA No. 247 of 2025 cause of action pleaded for the amendment now sought in the plaint. All these points are never considered by the First Appellate Court while allowing the application. The Court has also not considered that there will be change in the nature of the suit. 12. Therefore, I am of the opinion that the order passed by the First Appellate Court allowing the application under Order VI Rule 17 of CPC is liable to be set aside. However, the plaintiffs are at liberty to file fresh application seeking amendment of the plaint, if he is advised to do so before the Trial Court. If such an application is filed, the Trial Court will have to consider the same on its merits, without being influenced by any of the observations made herein above. 13. Accordingly, I proceed to pass the following: ORDER (i) The appeal is allowed in part. (ii) The Judgment and decree dated 18.09.2025 passed in RA No.22/2019 on the file of learned Senior Civil Judge and JMFC, Mulbagal is hereby - 11 - HC-KAR NC: 2025:KHC:47988 MSA No. 247 of 2025 confirmed, so far as it relates to setting aside the order passed by the Trial Court in allowing the application filed under Order VII Rule 11 of CPC and restoring the suit on file for fresh consideration. (iii) The Judgment, where the order is passed allowing the application IA No.1 under Order VI Rule 17 of CPC with cost, is set aside. (iv) Respondent No.1 to 4/ plaintiffs are at liberty to move an application seeking amendment of the plaint before the Trial Court, if they are advised to do so. In case, such an application is filed, the Trial Court is required to consider the same on its merits without being influenced by any of the observations made herein. (v) In view of the facts and circumstances, the parties are directed to bear their own costs. - 12 - HC-KAR NC: 2025:KHC:47988 MSA No. 247 of 2025 The suit that is restored on file before the Trial Court is of the year 2014. Therefore, the Trial Court shall make an endeavor to dispose of the same expeditiously. Sd/- (M G UMA) JUDGE BH CT:VS List No.: 2 Sl No.: 7