Sri K G Venkatesh vs Sri G E Prabhakar on 13 November, 2018

[Cites 3, Cited by 1]

Karnataka High Court

Sri K G Venkatesh vs Sri G E Prabhakar on 13 November, 2018

Bench: S.G. Pandit

                            1

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 13TH DAY OF NOVEMBER 2018

                        BEFORE

       THE HON' BLE MR. JUSTICE S.G. PANDIT

       WRIT PETITION No.42942/2018 (GM-CPC)

BETWEEN:

SRI K.G. VENKATESH
S/O K.R. GOPALAKRISHNA
AGED ABOUT 59 YEARS
PROP. SRI RADHAKRISHNA HARDWARES
SANTHEPETE CIRCLE
CHITRADURGA-577 501
                                        ... PETITIONER

(BY SRI T SHESHAGIRI RAO, ADV.)

AND:

SRI G.E. PRABHAKAR
S/O G ESHWARAPPA
AGED ABOUT 51 YEARS
R/AT DOOR NO.109, 1ST BLOCK
JANAPRIYA NIVAS
HESARAGATTA MAIN ROAD
CHIKKA BANAVARA
BENGALURU-560 090
CAMP:NO.6 KHB COLONY
HALALKERE ROAD
CHITRADURGA -577 501
                                       ... RESPONDENT


                         ********


     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH OF THE
                             2

ORDER DATED 05.09.2018 ONE PASSED BY THE PRL.SENIOR
CIVIL JUDGE AND CJM CHITRADURGA ON AN APPLICATION
FILED BY THE PETITIONER UNDER SECTION 151 OF CPC IN
O.S.NO.56/2017 I.E., I.A.NO.2, FOUND AT ANNEXURE-H TO THE
WRIT PETITION.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-


                          ORDER

The petitioner/defendant is before this Court under Article 227 of the Constitution of India, assailing the order dated 05.09.2018 passed in O.S.No.56/2017 on the file of Principal Senior Civil Judge and CJM, Chitradurga, by which the I.A.No.2 filed under Section 151 of CPC to treat issue No.2 with regard to limitation as preliminary issue is rejected.

2. Learned counsel for the petitioner submits that the trial Court while deciding I.A.No.2 has given a finding on the question of limitation. Therefore, the impugned order is liable to be set aside. It is further submitted that the petitioner/defendant has taken a specific contention that the suit is barred by time and 3 the trial Court has rightly framed issue with regard to limitation as to whether the suit is barred by limitation. The petitioner/defendant filed an application to treat the said issue as preliminary issue. By order dated 05.09.2018 the trial Court rejected the said application, which is impugned in this writ petition.

3. Heard the learned counsel for the petitioner and perused the writ papers.

4. The trial Court has rightly rejected the application to treat the issue No.2 with regard to limitation as preliminary issue. The issue with regard to limitation involves question of fact and law which requires recording of evidence. Therefore, the trial Court has rightly rejected the application. The learned counsel for the petitioner further submits that there are observations made in the impugned order, which would come in the way of deciding the issue of limitation. 4

5. There is no such definite finding with regard to limitation in the impugned order. But however, it is made clear that any observation made by the trial Court during the course of the impugned order on limitation shall not influence further proceedings in the suit and also while deciding the issue at the stage of final disposal.

With the above observation, writ petition stands disposed of.

Sd/-

JUDGE NG* CT:bms

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