B.KRISHNAPRASAD Vs. BHAGYAMMA

JUDGEMENT

(1.) Petitioner being the 1st defendant in the partition suit in O.S.No.369/2009 is invoking the writ jurisdiction of this Court for laying the challenge to the order dated 12.12.2014 whereby the learned Principal Civil Judge (Jr.Dn.) and JMFC, Chickballapur has decided to hold trial of issue No.3 as to maintainability of the suit, as the preliminary issue. After service of notice, respondents having entered appearance through their counsel, resist the Writ Petition.

(2.) The learned counsel for the petitioner argues that on 14.07.2014 the issue No.3 relating to bar of jurisdiction of Civil Court in view of Sec.132 of the Karnataka Land Reforms Act, 1961 having been directed to be considered along with all other issues and having posted the case for evidence of the respondent-plaintiffs, the learned trial Judge could not have favoured respondents application filed u/s.151 r/w 94(e) of CPC 1908 and thereby directed the petitioner to commence evidence subject to right of the other side to adduce rebuttal evidence. The learned counsel submits that the doctrine of res judicata as enacted u/s.11 of CPC applies to successive stages of the same litigation and this having not been noticed by the trial Judge, there is error apparent on the face of the record warranting indulgence of this Court to set the injustice at naught.

(3.) Learned counsel for the contesting respondents per contra submits that the Court below vide order dated 14.06.2011 had earmarked the said issue for being tried as a preliminary issue since it related to very jurisdiction of the Civil Court; by the impugned order effect is being given to the said order on the application of the respondents; even otherwise also there is no demonstrable prejudice occasioned to the petitioner by the impugned order; therefore there is no warrant for indulgence of writ court in this matter.