Karnataka High CourtBasayya S/O Mallayya vs Bandappa S/O Late Basanna on 23 October, 2021Author:Krishna S DixitBench:Krishna S.DixitIN THE HIGH COURT OF KARNATAKA\n                KALABURAGI BENCH\n\n  DATED THIS THE 23RD DAY OF OCTOBER, 2021\n\n                      BEFORE\n\n   THE HON'BLE MR.JUSTICE KRISHNA S.DIXIT\n\n                CRP NO.200012/2021\nBETWEEN:\n\nBASAYYA S/O LATE MALLAYYA\nAGE: 64 YEARS,\nOCC: AGRICULTURE,\nR/O ARISHANGI VILLAGE,\nTQ. AND DIST. RAICHUR-584 113\n\n                                        ... PETITIONER\n(BY SRI PREETAM DEULGAONKAR &\n SRI SHIVAPUTRA UDBALKAR, ADVOCATES)\n\n\nAND:\n\nBANDAPPA S/O LATE BASANNA\nAGE: 49 YEARS,\nOCC: AGRICULTURE,\nR/O ARISHANGI VILLAGE,\nTQ. AND DIST. RAICHUR-584 113\n\n                                       ... RESPONDENT\n(BY SRI SACHIN M. MAHAJAN, ADVOCATE)\n\n     THIS CRP IS FILED UNDER SECTION 115 OF THECPC, PRAYING TO ALLOW THIS PETITION AND SET ASIDE\nTHE ORDER DATED 15.06.2021 PASSED BY THE\nHONOURABLE COURT II ADDL. CIVIL JUDGE AND JMFC -IV\nAT RAICHUR WHEREBY THE I.A. NO.II FILED BY THE\n                               2\n\nPRESENT PETITIONER/DEFENDANT IN O.S.NO.132/2020 IS\nREJECTED.\n\n     THIS PETITION COMING ON FOR ORDERS THIS DAY,\nTHE COURT MADE THE FOLLOWING:-\n\n                          ORDERThe petitioner being the sole defendant in a suit\n\nfor declaration & injunction in O.S.No.132/2020 is\n\nknocking at the doors of Revisional Court for assailing\n\nthe order dated 15.06.2021 made by the learned II\n\nAdditional    Civil   Judge   at   Raichur,   whereby   his\n\napplication in I.A.No.II filedu/s 11of CPC, 1908, having\n\nbeen rejected, his request for resjudicating the suit has\n\nbeen turned down.2.     After service of notice, the respondent/\n\nplaintiff has entered appearance through his counsel,\n\nwho    vehemently      opposes     the   petition   making\n\nsubmission in justification of the impugned order and\n\nthe reasons on which it has been constructed.33.    Having heard the learned counsel for the\n\nparties and having perused the petition papers, this\n\ncourt declines indulges in the matter for the following\n\nreasons:a.    The      respondent's      earlier    suit    in\n\nO.S.No.240/2011 was dismissed on 21.08.2017 is true;\n\neven his appeal in R.A.No.37/2017 was also dismissed\n\nis also true; however, the said suit was for a decree of\n\nbare     injunction   whereas,    the    present    suit   in\n\nO.S.No.132/2020 is for declaration and consequent\n\ninjunction; that being the position, there is no unity\n\nand identity of the substrata of both the suits; therefore,\n\nthe doctrine of res judicata enacted insection 11of\n\nCode is not invokable, as rightly held by the court\n\nbelow.4.    The reliance of learned counsel for the\n\npetitioner on the decision of the Apex court in the case\n\nofAsgar and Others vs. Mohan Varma and Others4reported in (2020) 16 SCC 230 does not much come to\n\nhis aid, the fact matrix being miles away from that of\n\nthe present suit; it has long been settled by Lord\n\nHalsbury in Quinn v. Leathem (1901) A.C.495, 506\n\nthat a case is an authority for the proposition laid down\n\nin a given fact matrix and not for all that which logically\n\narises from what has been so laid down.5.    The court below in its discretion has made\n\nthe impugned order which does not merit a deeper\n\nexamination at the hands of this court, the scope of\n\nstatutory revision being restrictive; even otherwise, it is\n\nopen to the petitioner to make the impugned order one\n\nof the grounds to lay a challenge to the adverse\n\njudgment and decree if and when made in the suit, as\n\nprovided under Order XLIII Rule 1A read withsection\n\n105of the Code.56.   In the above circumstances, this petition\n\nbeing devoid of merits is liable to be dismissed and\n\naccordingly, dismissed.7.   In view of disposal of the main petition,\n\nI.A.No.1/2021 does not survive for consideration.Sd/-JUDGE\n\n\n\nVNR